SIERRA CLUB v. DIAMOND RANCH INC

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

The SIERRA CLUB et al., Plaintiffs and Appellants, v. COUNTY OF ALAMEDA et al., Defendants and Respondents, DIAMOND A RANCH, INC., et al., Real Parties in Interest and Respondents.

Civ. 38554.

Decided: September 22, 1977

Laurens H. Silver, Sierra Club Legal Defense Fund, Inc., Owen P. O'Donnell, Meis & O'Donnell, San Francisco, for plaintiffs and appellants. Richard J. Moore, County Counsel, Thomas J. Fennone, Senior Deputy County Counsel, County of Alameda, Oakland, for defendants and respondents. Watson & Joiner, Joseph D. Joiner, D. Dewey Watson, San Francisco, for real party in interest and respondents.

The issue of this appeal concerns the validity of a conditional use permit authorized by the Alameda County Board of Supervisors (hereafter sometimes the ‘Board’) pursuant to the zoning ordinance of that county.

The following facts are not in dispute.

The applicants for the conditional use permit, Diamond A Ranch, Inc. and William W. Apperson, the real parties in interest of this appeal (hereafter sometimes the ‘Applicants'), were the owners of about 2,555 acres in southern Alameda County known as the Apperson, or Diamond A, Ranch, and located within 6 miles of the Cities of Fremont, Pleasanton and Livermore. The land had been zoned as part of the county's ‘A’ (agricultural) district. The Applicants sought to use 145 acres (about 6 percent) of the land as an outdoor recreational facility (hereafter sometimes ‘Outdoor Recreation Facility’) consisting of 18 tennis courts, 40 riding horses with stables, corral and trails, a youth camp with shelter buildings including bunkhouses, toilets and cooking and eating accommodations, a health spa with outdoor sulphur and ‘health’ springs and lagoon and pools, swimming and wading pools, and related water supply, sewage, fire-fighting, and other facilities. The project contemplated 322 ‘guest villas' and additional accommodations for its employees. At peak occupancy and usage it would accommodate about 1,300 persons, including the employees, and at off seasons, about 100.

The county's zoning ordinance, section 8–25.3, expressly permits an ‘Outdoor Recreation Facility’ as a conditional use in its ‘A’ district.

After extensive hearings at the county's lower planning levels and then before the Board, the here contested conditional use permit for an Outdoor Recreation Facility was granted. Twenty-one conditions were imposed; they were generally calculated to insure adequate sewage disposal, water supply, storm drainage, proper grading, soil and geological studies and reports, adequate access roads, erosion control, preservation of existing vegetation, removal of solid waste, fire protection, traffic control, periodic inspections and payment of their costs, and compliance with building and other regulations.

Two of the conditions, as will later be seen, are of special significance. They were as follows:

‘18. The 322 ‘cottages' or ‘villas' shall not be designed or used as ‘dwelling units' as defined by Section 8–20.15 of the Zoning Ordinance.’

‘21. The 2,410 acres of the Diamond A Ranch not proposed for development under this permit shall, for the term of this permit, be used only as an operating cattle ranch and, except for riding trails accessory to the use authorized by this permit, shall remain otherwise undeveloped.’

Government Code section 65901 provides for the issuance of conditional use permits by a county's zoning authority ‘when the zoning ordinance provides therefor and establishes criteria for determining such matters, . . .’

Pursuant to that statutory authorization Alameda County's zoning ordinance's section 8–94.0 had established the following criteria:

‘CONDITIONAL USES. Certain Uses, referred to in this Chapter as Conditional Uses, are hereby declared to possess characteristics which require special review and appraisal in each instance, in order to determine whether or not the use (1) is required by the public need, (2) whether the use will be properly related to other land uses and transportation and service facilities in the vicinity, (3) whether or not the use if permitted will, under all the circumstances and conditions of the particular case, materially affect adversely the health or safety of persons residing or working in the vicinity, or be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood, and (4) whether or not the use will be contrary to the specific intent clauses or performance standards established for the District, in which it is to be located. . . .’

These criteria, common in California, are called ‘general welfare’ criteria. (See County of Imperial v. McDougal, 19 Cal.3d 505, 510, fn. 2, 138 Cal.Rptr. 472, 564 P.2d 14; Hawkins v. County of Marin, 54 Cal.App.3d 586, 591–592, 126 Cal.Rptr. 754; Cal. Zoning Practice (Cont.Ed.Bar 1969) Types of Zoning Relief, §§ 7.70–7.71, pp. 305–306.) They ordinarily authorize a conditional use permit where the zoning authority, on substantial evidence, finds that the ‘general welfare’ standards are satisfied.

Such ‘general welfare’ criteria ‘cannot be successfully challenged.’ (City & County of S.F. v. Superior Court, 53 Cal.2d 236, 250, 1 Cal.Rptr. 158, 347 P.2d 294; and see Simi Valley Recreation & Park Dist. v. Local Agency Formation Com., 51 Cal.App.3d 648, 672, 124 Cal.Rptr. 635; Garavatti v. Fairfax Planning Com., 22 Cal.App.3d 145, 150, 99 Cal.Rptr. 260; City of Santa Clara v. Santa Clara Unified Sch. Dist., 22 Cal.App.3d 152, 163, 99 Cal.Rptr. 212; Mitcheltree v. City of Los Angeles, 17 Cal.App.3d 791, 797, 95 Cal.Rptr. 76; Van Sicklen v. Browne, 15 Cal.App.3d 122, 126–127, 92 Cal.Rptr. 786; Stoddard v. Edelman, 4 Cal.App.3d 544, 548, 84 Cal.Rptr. 443.)

A companion provision of the ordinance is section 8–94.1, which states:

‘CONDITIONAL USES: ACTION. The Zoning Administrator shall receive, hear and decide applications for a Conditional Use Permit and after the conclusion of the hearing may authorize approval as to zoning of the proposed use if the evidence contained in or accompanying the application or presented at the hearing is deemed sufficient to establish that, under all circumstances and conditions of the particular case, the use is properly located in all respects as specified in Section 8–94.0, and otherwise it shall disapprove the same.’

As will be seen from our ensuing discussion, it bears emphasis that section 8–94.1 provides that the county's zoning authority ‘may authorize approval . . . of the proposed [conditional] use if the evidence . . . is deemed sufficient to establish that . . . the use is properly located in all respects as specified in [the ‘general welfare’ criteria of] Section 8–94.0, . . .' Nothing further is there required for issuance of a conditional use permit.

Contemporaneously with the issuance of the here disputed conditional use permit the Board made these findings of fact:

‘(1) The use is required by the public need in that there is no comparable recreation resort area of the type proposed herein in the County of Alameda offering such unique advantages as proximity to operating regional parks and uncultivated and undeveloped lands combining both ease of accessibility to developed urban areas of the County together with scenic rural and pastoral amenities; also, the completed project will directly result in an increased tax base generating revenues to the County to the benefit of all taxpayers therein;

‘(2) The use will be properly related to other land uses and transportation and service facilities in the vicinity in that a proposed access road for the project shall be designed to conform to County gradient criteria, which access road already exists in part and will be connected to existing County roads in the area, which roads can accommodate whatever increase in traffic is generated by the completed project. The land uses in the vicinity are a mixture of open space, agricultural-oriented, residential and highway frontage commercial. The project land is presently zoned in the ‘A’ (Agricultural) Zoning District which permits one residence for each one hundred acres. If allowed to develop in a residential manner without any change in zoning, some 25 residences might be constructed on the Ranch acreage. By appropriate conditioning of this permit most of this land will remain in uncultivated, undeveloped open space, in furtherance of the goals and policies set forth in the Alameda County General Plan and the Open Space Element thereof.

‘(3) The use will not, if permitted, under all the circumstances and conditions of this particular case, materially affect adversely the health or safety of persons residing or working in the vicinity, or be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood in that only 145 acres out of a total of 2,555 comprising the Ranch are to be developed subject to site plans and, specifically, the (21) conditions set forth by this resolution will guarantee the maximum protection to the public welfare and to other public and private property and improvements in the area.

‘(4) The use will not be contrary to the specific intent clause or performance standards established for the district in which it is to be located in that the Agricultural Zoning District both specifically by its terms and impliedly by application of its intent provisions is hereby found to permit such structured and controlled use in a manner consistent with the open space values set forth by the Alameda County General Plan and the Open Space Element thereof, which documents recognize textually that limited portions of lands designated for uncultivated and undeveloped use should be made available for vacation, weekend, and resort-type development provided that adequately designed controls are enforced to assure development that will harmonize with and enhance natural topographic features. It is the conclusion of this Board that the guaranteed retention of more than 2,400 acres of the Diamond A Ranch in an undeveloped state more than offsets any permanent detrimental effects of the proposed development which effects, if any, are found to be minimal when compared with the benefits which will accrue to the taxpayers of the County and the inhabitants thereof who seek recreational use of lands in the County in close proximity to their urban surroundings.’

Examination of these findings of fact reveals that, among other things, the Board found, as required by section 8–94.1, the existence of each of the four necessary factual criteria of section 8–94.0.

Following issuance of the conditional use permit the plaintiffs, seeking to set it aside, commenced the instant mandate proceeding under the authority of Code of Civil Procedure section 1094.5. At the ensuing hearing the superior court, finding no ‘fundamental vested right’ at issue, properly inquired whether the Board's findings of fact were supported by substantial evidence in the light of the whole record. (See Topanga Ass'n for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506, 510, fn. 1, 113 Cal.Rptr. 836, 522 P.2d 12; Strumsky v. San Diego County Employees Retirement Ass'n, 11 Cal.3d 28, 32, 112 Cal.Rptr. 805, 520 P.2d 29.) Finding such support, the court entered judgment in favor of the County of Alameda, the Board, and the Applicants. Plaintiffs' appeal is from that judgment.

I. Plaintiffs' first contention is that, as a matter of law, the conditional use permit was not authorized by Alameda County's zoning ordinance.

Their reliance is principally upon two ‘Definitions' of the zoning ordinance. They follow:

Section 8–22.0: ‘OUTDOOR RECREATION FACILITY. Outdoor Recreation Facility means a park, or a playing field for active games, a golf course, a swimming pool, a camp or picnic grounds, or a neighborhood recreation area, together with such Buildings or uses as are accessory to the recreational use. The term does not include Drive-In Theatre, a Drive-In Business, carnival, circus or trampoline courts.’

Section 8–20.3: ‘ACCESSORY USE. Accessory Use means a Use which is appropriate, subordinate, incidental and customarily or necessarily related to a lawfully existing Principal Use on the same Lot or Building Site and does not alter the essential characteristics of such Principal Use as a whole and as related to other Uses permitted in the same District.’

It is contended that these provisions restrict the broad discretion granted the zoning authority by the ordinance's ‘general welfare’ criteria, section 8–94.0 and its companion section 8–94.1.

Plaintiffs find no fault with the conditional use permit insofar as it relates to the tennis courts, youth camp, swimming pools and equestrian facilities. But they contend that a ‘major portion of the project, however—the health spa, the 322 ‘guest villas,’ and the staff housing—plainly does not fit the definition.' Their argument is that each of the project's uses must not only meet the ‘general welfare’ criteria of sections 8–94.0 and 8–94.1, but also must come within the definitions of sections 8–22.0 and 8–20.3.

The Board and the Applicants, on the other hand, contend that the ordinance's ‘general welfare’ criteria are the measure of the Board's authority to grant a conditional use permit. They insist that the purpose of the definitional sections, 8–22.0 and 8–20.3, is merely to illustrate and furnish examples of, for the benefit of the public and the lower zoning authority, the general types of outdoor recreation facilities and accessory uses reasonably to be allowed, in the zoning authority's discretion.

The immediate issue is thus one of statutory interpretation.

We have considered the respective contentions of the parties. Our conclusion is that the county's zoning authority, in its discretion, may authorize a conditional use permit for an Outdoor Recreation Facility reasonably found to meet the ‘general welfare’ criteria of the zoning ordinance's section 8–94.0. We state the reasons for this conclusion.

Preliminarily, we point out the nature of the conditional use permit as customarily authorized, and used, in California.

‘[A] conditional use permit, unlike a nonconforming use, allows a use permitted rather than proscribed by the zoning regulations but because of the possibility that the permitted use could be incompatible in some respects with the applicable zoning, a special permit is required.’ (County of Imperial v. McDougal, supra, 19 Cal.3d 505, 510, 138 Cal.Rptr. 472, 475, 564 P.2d 14, 17.)

We said in Van Sicklen v. Browne, supra, 15 Cal.App.3d 122, 126, 92 Cal.Rptr. 786, 788, that: ‘[T]he traditional purpose of the conditional use permit is to enable a municipality to exercise some measure of control over the extent of certain uses . . . which, although desirable in limited numbers, could have a detrimental effect on the community in large numbers.’

Earlier the court in Tustin Heights Ass'n v. Bd. of Supervisors, 170 Cal.App.2d 619, 626, 339 P.2d 914, 919, stated: ‘A conditional use may be permitted if it is shown that its use is essential or desirable to the public convenience or welfare and at the same time that it will not impair the integrity and character of the zoned district. It must also be shown that it is not detrimental to public health, public morals, or public welfare.’ (Accord Mitcheltree v. City of Los Angeles, supra, 17 Cal.App.3d 791, 795, 95 Cal.Rptr. 76.)

The concept was further explored in People v. Perez, 214 Cal.App.2d Supp. 881, 885, 29 Cal.Rptr. 781, 783, in this manner: ‘The device of providing for the issuance of a special use permit is well recognized as legitimate zoning procedure. It permits the inclusion in the zoning pattern of uses considered by the legislative body to be essentially desirable to the community, but which because of the nature thereof or their concomitants (noise, traffic, congestion, effect on values, etc.), militate against their existence in every location in a zone, or in any location without restrictions tailored to fit the special problems which the uses present. [¶] There are limits, however, on the uses of this procedure. To be valid it should be limited to those uses only for which it is difficult to specify adequate conditions in advance, i. e., schools, hospitals, service stations, and uses of the type specified in [the City of Fremont's Municipal Code]; and as to such uses, adequate standards must be laid down by the legislative authority for the guidance of the administrative agency.’ (See also Upton v. Gray, 269 Cal.App.2d 352, 357, 74 Cal.Rptr. 783.)

The authors of California Zoning Practice (Cont.Ed.Bar 1969) Types of Zoning Relief, section 7.59, page 296, thus describe the conditional use practice of the state: ‘At present, the conditional use permit is widely used and serves many needs. Heterogeneous uses can be accommodated in one area under proper conditions. The homogeneity required by early zoning is not now considered so important. The multiplication and complexity of land-uses makes classification in a proper zone difficult. In California zoning flexibility could not be obtained by spot zoning because of rather diligent court superintending of that practice. . . . Professional planners understand this and look to the conditional use permit in order to achieve flexibility. Precise control of uses is possible with conditional use permits. In large cities detailed standards cannot be worked out in advance. A good deal of discretion must be granted to administrators if the city is to function at all. . . . Therefore, ad hoc handling of proposed uses with only broad standards for guidance, is becoming the practice.’

And we observe that the same principles appear to govern the practice of conditional use permits throughout the nation. ‘The function of a special [conditional use] permit is to bring some flexibility to the rigid restrictions of a zoning ordinance while at the same time controlling troublesome or somewhat incompatible uses by establishing, in advance, standards which admit the use only under certain conditions or circumstances.’ (82 Am.Jur.2d, Zoning and Planning, § 281, p. 828; fns. omitted.)

It will be seen that the prime justification for conditional use permits lies in the growing need for flexibility in zoning administration, and the avoidance of detailed standards worked out in advance. More discretion is reposed in the administrator than formerly. Today it is the rule that there be an ‘ad hoc handling of proposed uses, with only broad standards for guidance, . . .’ And those broad standards are commonly found in ‘general welfare’ criteria such as are found in the ordinance's section 8–94.0.

It is reasonable to conclude that upon adopting the ‘general welfare’ criteria, the Board did not intend to undo the flexibility of those standards by setting forth under the ordmance's ‘Definitions' precisely the conditional uses which would be permitted. If such were the intent there would have been little or no purpose in adopting the broad ‘general welfare’ criteria of section 8–94.0. Where a statute, or zoning ordinance, is susceptible of different interpretations, that which is the more reasonable is to be preferred. (Town of Atherton v. Templeton, 198 Cal.App.2d 146, 149–150, 17 Cal.Rptr. 680.) And we must discern the “legislative intent so that the purpose of the law may be effectuated . . ..” (People ex rel. Younger v. Superior Court, 16 Cal.3d 30, 40, 127 Cal.Rptr. 122, 128, 544 P.2d 1322, 1328.)

No purpose is seen in the ordinance's definition of Outdoor Recreation Facility to make its itemizations exclusive. Section 8–22.0 states only that Outdoor Recreation Facility ‘means a park, or a playing field for active games, a golf course,’ etc. Had the purpose been to make the listings exclusive, one must reasonably conclude that the ordinance would have said so. And it is noted that section 8–22.0 concludes with the language: ‘The term does not include Drive-In Theatre, a Drive-In Business, carnival, circus or trampoline courts.’ Had the intent been to make the section's other itemizations exclusive, then the latter recital must be deemed unnecessary and redundant, a conclusion which we are not permitted to draw. (See Moyer v. Workmen's Comp. Appeals Bd., 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224; Watkins v. Real Estate Commissioner, 182 Cal.App.2d 397, 400, 6 Cal.Rptr. 191, 193, ‘a construction making some words surplusage is to be avoided . . ..’)

We observe also that the definitions relied upon by plaintiffs follow the ordinance's section 8–20.0, reading: ‘DEFINITIONS. For the purpose of this Chapter [i. e., the zoning ordinance], certain words and phrases are defined and shall be construed as set out in this and the following sections unless it is apparent from the context that they have a different meaning. . . .’ (Emphasis added.) In the context of the ordinance an intent may reasonably be perceived that the subject definitions be descriptive generally of the diverse types of Outdoor Recreation Facilities to be allowed.

And we are influenced by the fact that the Board, which had enacted the subject zoning ordinance and applied it in the instant case, interprets the ordinance and its sections 8–22.0 and 8–20.3 as not placing a limitation on the power to grant conditional use permits, other than according to the ‘general welfare’ criteria of its section 8–94.0. The interpretation of a statute or ordinance by the legislative body which enacted it, or by an agency whose duty it is to carry it into effect (here the Board is both) is, at least in doubtful cases, ‘to be given great weight by the courts in arriving at its proper meaning.’ (Mantzoros v. State Bd. of Equalization, 87 Cal.App.2d 140, 143, 196 P.2d 657, 659; and see Bd. of Soc. Welfare v. County of L. A., 27 Cal.2d 90, 97, 162 P.2d 635; Anderson v. State Bd. of Chiropractic Examiners, 11 Cal.App.3d 963, 967, 90 Cal.Rptr. 152; Myers v. Workmen's Comp. App. Bd., 2 Cal.App.3d 621, 628, 83 Cal.Rptr. 427; Godward v. Board of Trustees, 94 Cal.App. 160, 163, 270 P. 725.)

Referring to the 322 so-called ‘guest villas' found to be accessory structures by the Board, plaintiffs point to yet another ‘Definition,’ that of ‘Accessory Structure’ (§ 8–20.2) which, among other things, states: ‘The term does not include a Dwelling or a guest house in any . . . A District.’ A ‘Dwelling’ or ‘Dwelling Unit means a room, or a suite of connecting rooms, designed for use as separate living quarters or used as separate living quarters and constituted as a separate and independent housekeeping unit and having its own kitchen facilities consisting of one or more of the following: Sink, cooking facility or refrigerator.’ (§ 8–20.15.) A ‘guest house’ is not defined by the zoning ordinance, but the Board equates the term with a ‘Dwelling Unit’ having ‘kitchen facilities,’ and not as a room, or rooms, with bath such as are contemplated by the Outdoor Recreation Facility.

As we have pointed out, condition 18 of the conditional use permit provides: ‘The 322 ‘cottages' or ‘villas' shall not be designed or used as ‘dwelling units' as defined by Section 8–20.15 of the Zoning Ordinance.’

And it is patent that without the availability of appropriate overnight, weekend, and vacationing housing the public need for the Outdoor Recreation Facility as found by the Board, would not be fulfilled, or at least the Board might reasonably so conclude.

Further, the zoning authority's power to grant conditional use permits for Outdoor Recreation Facilities carries the corresponding power to grant whatever is reasonably essential to such a use. (See Civ.Code, § 3522; Vernon v. Board of Supervisors, 142 Cal. 513, 516, 76 P. 253.) This concept is recognized by the zoning ordinance's already much discussed section 8–22.0 which states that ‘Outdoor Recreation Facility’ includes such ‘Buildings or uses as are accessory to the recreational use.’

II. The next contention of plaintiffs is that the conditional use permit is invalid because it is ‘inconsistent with the Alameda County Open Space Element of the General Plan.’

On this issue it appears proper to initially observe a recital of an environmental impact report before the Board: ‘Subject property is within an area designated for permanent open space in the Association of Bay Area Government's Regional Plan 1970:1990. The Regional Open Space Plan Phase II, which explains the concept of multi-functional open space, more specifically identifies the area as one which fulfills four of the six major purposes for maintaining open space: 1. Managed resource production; 2. Human health, welfare & wellbeing; 3. Outdoor recreation; and 4. Shaping urban growth.’

By Government Code sections 65563 and 65910 the Legislature called upon each of the state's counties, by December 31, 1973, to prepare and adopt an ‘open-space plan for the comprehensive and long-range preservation and conservation of open-space land within its jurisdiction.’ By Government Code section 65564, it was further provided that the ‘local open-space plan shall contain an action program consisting of specific programs which the legislative body intends to pursue . . ..’ And Government Code section 65912 stated: ‘The Legislature hereby finds and declares that this article is not intended, and shall not be construed, as authorizing the city or the county to exercise its power to adopt, amend or repeal an open-space zoning ordinance in a manner which will take or damage private property for public use without the payment of just compensation therefor. This section is not intended to increase or decrease the rights of any owner of property under the Constitution of the State of California or of the United States.’

Pursuant to this legislation the Board adopted the ‘Open Space Element of the Alameda County General Plan’ (hereafter sometimes ‘Open Space Element’). It set forth, as required, the county's long-range policy and goals for the ‘preservation and conservation of open-space land . . ..’ And, as demanded by the Legislature, it was ‘comprehensive’ in scope. No contention is made that it did not fully satisfy the statutory requirements.

Neither reason, nor space, permits a full recital of the Open Space Element's contents. But we select some of the policies and goals therein described, and considered by the Board.

The Open Space Element is designed to serve as a ‘guide’ in ‘dealing with the preservation and enhancement of open space’; it is ‘intended to establish official basic policy’ in respect thereof, including ‘coordination’ between the county and ‘private land holders,’ and to guide ‘in the development of more detailed open space plans . . ..’ Since there is a ‘need for intelligent choice of uses' of open space, it ‘is intended to establish official, consistent policy so that equitable . . . use of land will be made.’ ‘[O]pen space [must relate] to existing and proposed urban land uses in such a manner as to enhance living conditions in the entire county,’ and it should be maintained ‘through means that will be economically feasible for public and private interests.’ Different types and purposes of open space are recognized; some should be provided for ‘public use and enjoyment,’ some for ‘protection of agriculture,’ some for ‘wildlife habitat,’ and some for ‘scenic values.’ ‘[E]asily accessible open space’ close to communities (as in the instant case) should be ‘utilized for leisure time facilities.’ ‘Development within open space areas should be permitted in selected areas and should be limited to . . . selected public facilities.’ ‘To provide for close-in leisure time facilities, recreation and park areas should be provided within the open space surrounding each city or community. Recreation trails should be provided throughout the public open space surrounding each community to connect with recreation areas.’ The facilities should ‘provide leisure time enjoyment for all age and economic groups . . ..’ And the ‘division of large agricultural holdings into smaller parcels' should be discouraged.

Here the Board reasonably found that the Applicants' project served several goals of the Open Space Element: i. e., managed resource production, human health, welfare and well-being, outdoor recreation, and shaping urban growth. And notably, by condition 21 of its conditional use permit, it required a commitment of 2,410 acres of land to a type of open-space use which apparently would not otherwise have been possible, except by the county's payment therefor. (See Gov.Code, § 65912.)

From our consideration of the Open Space Element, and the evidence, we are of the opinion that the Board reasonably could, and did, conclude that the conditional use permit at issue was closely attuned to the stated policy and goals of the county's Open Space Element. Plaintiffs' contrary contention is found invalid.

III. Plaintiffs on their appeal raise an issue that went unmentioned in the superior court mandate proceedings. They now argue that the ‘Board failed to make the necessary factual findings.’

Although reviewing courts will not ordinarily determine previously unraised and unconsidered issues on appeal (see 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, §§ 218(2), 276 pp. 4208–4209, 4264), we choose to consider the contention.

In an opinion written by Justice Tobriner, then of this court, we considered the nature and requirements of a zoning authority's findings of fact. We said, ‘The nature of the administrative process . . . is such as to call for generalized statement. Its purpose is not to prove a precise fact, as in a trial in court, but to weigh the social and public advantages or disadvantages of the issuance of the permit.’ (Floresta, Inc. v. City Council, 190 Cal.App.2d 599, 609, 12 Cal.Rptr. 182, 188.) Thereafter, this time speaking for the state's high court, Justice Tobriner stated that such findings of fact are sufficient if they ‘establish compliance with all of the statutory criteria and are supported by substantial evidence . . ..’ (Broadway, Laguna etc. Ass'n v. Board of Permit Appeals, 66 Cal.2d 767, 773, 59 Cal.Rptr. 146, 150, 427 P.2d 810, 814.) Then the same court, speaking throught the same justice, elaborated upon the subject in Topanga Ass'n for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d 506, 516–517, fn. 16, 113 Cal.Rptr. 836, 842, 522 P.2d 12, 18. There it was reiterated that a zoning authority's findings of fact “need not be stated with the formality required in judicial proceedings.” But the court required that there be some reasonably understandable statement of the manner in which the ordinance's criteria had been met, thus more clearly disclosing “‘the grounds upon which the administrative agency acted.”’

This authority in no way tends to deprecate or impugn the ‘public welfare’ criteria of zoning ordinances. Instead it respects such criteria by demanding better assurance that they have been met.

We further note it has often been held that findings of fact following a zoning ordinance's ‘general welfare’ criteria for the issuance of a conditional use permit are sufficient. (See Essick v. City of Los Angeles, 34 Cal.2d 614, 622, 213 P.2d 492; Jacobson v. County of Los Angeles, 69 Cal.App.3d 374, 389–390, 137 Cal.Rptr. 909; McMillan v. American Gen. Fin. Corp., 60 Cal.App.3d 175, 184–186, 131 Cal.Rptr. 462; Hawkins v. County of Marin, supra, 54 Cal.App.3d 586, 591–592, 126 Cal.Rptr. 754; Mitcheltree v. City of Los Angeles, supra, 17 Cal.App.3d 791, 795–797, 95 Cal.Rptr. 76; Van Sicklen v. Browne, supra, 15 Cal.App.3d 122, 127, 92 Cal.Rptr. 786; Stoddard v. Edelman, supra, 4 Cal.App.3d 544, 548–550, 84 Cal.Rptr. 443; Tustin Heights Ass'n v. Bd. of Supervisors, supra, 170 Cal.App.2d 619, 626, 339 P.2d 914.)

Alameda County's zoning ordinance's ‘general welfare’ requirements for conditional use permits are set out in its section 8–94.0 (quoted pp. 867–868, ante). The Board's findings of fact (quoted pp. 866–867, ante) determined not only that all of the ‘general welfare’ criteria had been met, but also went into considerable detail as to the manner in which they had been met. They are found by us to be sufficient.

It is also concluded that appropriate findings of fact were made by the Board in respect of the Open Space Element. As pointed out, there it was found that 2,410 acres of ‘this land will remain in uncultivated, undeveloped open space, in furtherance of the goals and policies set forth in the Alameda County General Plan and the Open Space Element thereof’ (finding (2)); and that ‘It is the conclusion of this Board that the guaranteed retention of more than 2,400 acres of the Diamond A Ranch in an undeveloped state more than offset any permanent detrimental effects of the proposed development which effects, if any, are found to be minimal when compared with the benefits which will accrue to the taxpayers of the County and the inhabitants thereof who seek recreational use of lands in the County in close proximity to their urban surroundings' (finding (4)).

Indeed, in our opinion, the Board's findings of fact form a classic illustration of proper findings by a zoning agency as required by Topanga Ass'n for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d 506, 113 Cal.Rptr. 836, 522 P.2d 12; Broadway, Laguna etc. Ass'n v. Board of Permit Appeals, supra, 66 Cal.2d 767, 773, 59 Cal.Rptr. 146, 427 P.2d 810; and Floresta, Inc. v. City Council, supra, 190 Cal.App.2d 599, 609, 12 Cal.Rptr. 182.

IV. Plaintiffs also appear to argue, again for the first time on this appeal, that the Board's findings of fact were not supported by the evidence. Our examination of the record discloses this contention also to be without validity; the findings in all respects were amply supported by substantial evidence in the light of the whole record.

Implicit in plaintiffs' arguments is understandable and commendable insistence that Alameda County's ‘A’ (agricultural) district land should be protected from further exploitation. But the Board was charged with the difficult task of accommodating the needs of a populous county and the rights of its landowners, with the compelling public purpose of using the county's environmental resources wisely. In the resolution of those opposing interests, the Board made a determination with which some may not agree, but which nevertheless may not fairly be called unreasonable.

Certain language of Wheeler v. Gregg, 90 Cal.App.2d 348, 361, 203 P.2d 37, 46, is here apropos:

‘Whether or not the granting of the permit herein was wise as a matter of policy is something which is beyond the courts to determine unless the ordinance under which such action is taken is unconstitutional or void. The rule is indelibly written into our law that all questions of policy and wisdom concerning matters of municipal affairs are for the determination of the legislative governing body of the municipality and not for the courts. In the exercise of the policy power a large discretion is vested in the legislative branch of the government. The function of the courts is to determine whether or not municipal bodies acted within the limits of their power and discretion. Courts are not authorized to entertain a hearing de novo and then make such order as in their opinion the municipal authorities should have made. Were the rule otherwise, courts would be usurping the functions of the municipal governing body (Lockard v. City of Los Angeles, 33 Cal.2d 453, 461, 202 P.2d 38).

‘The determination of what harmonizes with the elements and objectives of the master zoning plan having been committed to the discretion of the local governing bodies, the burden of proving that the City Council acted without substantial evidence and in excess of jurisdiction, rested upon appellants. And this requirement is not satisfied by a mere showing that there was a conflict in the evidence, or that the City Counil on the basis of the record before it, might have been justified in deciding differently, or that the record before the Council might have supported a conclusion contrary to that which was arrived at (Hogan v. Retirement Board, 13 Cal.App.2d 676, 677, 57 P.2d 520).’ (And to the same general effect see Rapp v. Napa County Planning Com., 204 Cal.App.2d 695, 700–701, 22 Cal.Rptr. 643; Ferris v. City of Alhambra, 189 Cal.App.2d 517, 524–525, 11 Cal.Rptr. 475; Robinson v. City of Los Angeles, 146 Cal.App.2d 810, 815–816, 304 P.2d 814; Steiger v. Board of Supervisors, 143 Cal.App.2d 352, 355–356, 300 P.2d 210; Schumm v. Board of Supervisors, 140 Cal.App.2d 874, 879–880, 295 P.2d 934.)

V. The conclusions we have reached above are also responsive to the several incidental points and contentions raised by plaintiffs.

For the reasons stated in our opinion, the judgment of the superior court is affirmed.

I agree that the ‘immediate issue’ presented is one of statutory interpretation, but cannot agree with the conclusion reached by the majority in order to justify the contemplated use as an authorized conditional use.

The subject zoning ordinance1 demonstrates a typical comprehensive legislative design to regulate and control the use of property within its jurisdiction. It specifically defines the nature and type of property uses principally allowable in each zone as well as those conditionally permissible subject to a prescribed agency review process. In assessing the nature of a given use, it is the activity to be conducted upon the property which defines that use. (See Broadway, Laguna etc. Ass'n v. Board of Permit Appeals (1967) 66 Cal.2d 767, 776, 59 Cal.Rptr. 146, 427 P.2d 810.) Unless such activity or use is legislatively sanctioned as a permitted use in the particular zone, it may not be considered for approval by the administrative agency. (Cf. Kappadahl v. Alcan Pacific Co., 222 Cal.App.2d 626, 641, 35 Cal.Rptr. 354.) Whether the proposed use of 145 acres as an ‘Outdoor Recreational Facility’ (Ord. § 8–25.3(b))2 is permissible requires a meaningful construction of the relevant provisions of the zoning ordinance in order to discern the legislative intent so that the purpose of the law may be carried out in harmony with ‘. . . the entire statutory system of which it forms a part . . ..’ (People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40, 127 Cal.Rptr. 122, 128, 544 P.2d 1322, 1328), and effect be given to statutes “according to the usual, ordinary import of the language employed in framing them” (Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918, 80 Cal.Rptr. 89, 96, 458 P.2d 33, 40.)

Although a well-established rule requires that contemporaneous construction of a statute by those whose duty it is to implement is to be accorded great respect by the courts (County of Los Angeles v. Frisbie, 19 Cal.2d 634, 643, 122 P.2d 526; Mantzoros v. State Bd. of Equalization, 87 Cal.App.2d 140, 143, 196 P.2d 657) and will be followed if not clearly erroneous (Bodinson Mfg. Co. v. California E. Com., 17 Cal.2d 321, 325, 109 P.2d 935; Christensen v. Thurber (1953) 120 Cal.App.2d 517, 519, 261 P.2d 312), ‘. . . ‘final responsibility for the interpretation of the law rests with the courts. . . .’ [and] . . . The rule of contemporaneous construction may not be applied when the wording of the statute or ordinance . . . clearly calls for a different construction. [Citation.]' (Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 74–75, 187 P.2d 686, 692.) Where the wording is clear and unambiguous, the county is duty-bound to comply with the provisions of its own ordinances. (See Robison v. City of Oakland (1968) 268 Cal.App.2d 269, 274, 74 Cal.Rptr. 17; Tustin Heights Ass'n v. Bd. of Supervisors (1959) 170 Cal.App.2d 619, 630, 339 P.2d 914.)

The majority opinion glosses over such fundamental propositions through a tangential discourse bearing upon settled principles relating to the plenary discretion vested in a local authority to grant or deny a conditional use otherwise authorized by ordinance. (See Gov.Code, § 65901.) In so doing, the underlying intent of the zoning ordinance in defining and restricting the uses permitted in an agricultural (‘A’) district is inexplicably disregarded.

In construing the applicable ordinances, the nature of the proposed use must necessarily be examined. Under the permitted classification of outdoor recreational facility (illustratively defined in section 8–22.03 ) what is proposed is a large-scale, commercially-oriented facility4 involving high density uses. While no project details are supplied the record reveals that among other things the ‘health spa’ will include the construction and live-in use of some 322 guest ‘villas' or ‘cottages' on 75 acres of the proposed 145-acre development.5 These villas or cottages are tentatively illustrated as separate living units consisting of either two-bedroom, two-bath models of approximately 850 square feet floor area, or a deluxe model containing nearly twice the floor area; kitchens are not proposed but ‘sink and refrigerator areas are shown for the convenience of guests.’ In practical effect, the proposed outdoor facility conceptualizes regular occupancy and use of a residential complex not expressly authorized in an ‘A’ district. (Ord. § 8–25.0 establishes such district ‘. . . for agricultural and other non-urban uses . . .’ (emphasis added) and Ord. § 8–25.5 imposes a 100-acre lot minimum building site for any ‘A’ district use.)

A fair reading of the relevant ordinances indicates that only such uses as are consistent with the primary district purpose, together with necessarily related accessory buildings and uses,6 shall be permitted. Conceding, arguendo, that a ‘health spa’ (a place ‘. . . resorted to for cures . . .’ (Webster's Third New Internat. Dict., p. 2180)) qualifies as an outdoor recreational or diversionary facility, it is unreasonable to conclude that such classification somehow generically includes a mixed business-residential use of substantial magnitude, either directly or incidentally as an accessory use. Certainly hundreds of live-in accommodations for paying guests cannot, at least in the absence of supporting findings,7 be routinely characterized as an integral part of the normal use of an outdoor mineral springs facility or as a ‘subordinate’ structure whose use is both ‘appropriate, incidental and customarily or necessarily related’ to permitted agricultural uses and an authorized outdoor recreational facility. Indeed, such conclusion is compelled under the clear wording of the ordinance (§ 8–20.2) which expressly excludes dwellings and guest houses as accessory structures in an ‘A’ district.8 By conveniently finding an equation of guest house with dwelling unit, the majority commits the very error of construction cautioned against in interpreting the restrictive language of the conditional use ordinance. (Cf. § 8–22.0; see Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)

Manifestly, the record cannot support the broad construction fashioned in the opinion. To sanction a proposed development unauthorized by the zoning ordinance would effectively result in amendment of that ordinance in the guise of a conditional use. (Cf. Cow Hollow Improvement Club v. Board of Permit Appeals (1966) 245 Cal.App.2d 160, 181, 53 Cal.Rptr. 610, involving a variance.) Such rezoning of a district or changes of uses and restrictions within a district can be accomplished only through formal amendment in the same mode as the original enactment. (City of Sausalito v. County of Marin (1970) 12 Cal.App.3d 550, 564, 90 Cal.Rptr. 843.) In approving the proposed comprehensive use, the board exceeded its jurisdiction and prejudicially abused its discretion.

I would reverse the judgment and direct the trial court to issue a writ of mandamus directing the board to set aside and vacate its resolution approving the proposed conditional use, and to conduct a further hearing and make specific findings supporting its decision as to whether the proposed guest villas and/or cottages constitute either a permissible principal use or an accessory use or structure, as provided in its zoning ordinance.9 (See Topanga Ass'n for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515, 113 Cal.Rptr. 836, 522 P.2d 12.)

FOOTNOTES

1.  Chapter 2, title 8, part 1, of the Alameda County Ordinance Code, as amended.

2.  All ordinance section references hereafter made are to the Alameda County Zoning Ordinance unless otherwise indicated.

3.  ‘8–22.0 OUTDOOR RECREATION FACILITY. Outdoor Recreation Facility means a park, or a playing field for active games, a golf course, a swimming pool, a camp or picnic grounds, or a neighborhood recreation area, together with such Buildings or uses as are accessory to the recreational use. The term does not include Drive-In Theatre, a Drive-In Business, carnival, circus or trampoline courts.’

4.  The zoning ordinance expressly authorizes a commercial recreational facility only in commercially-zoned districts. (See Ord. §§ 8–45.2(b) and 8–48.2(f).)

5.  The proposed site development plan indicates that the spa and 140 ‘cottages' for guests and staff will be situated on approximately 30 acres, and the remaining guest ‘villas' to be located on a 45-acre parcel about 1 mile distant.

6.  The ordinance explicitly defines both accessory structures and uses as follows:‘80–20.2 ACCESSORY STRUCTURE. Accessory Structure means a detached subordinate Structure or Building on a Lot, the use of which is appropriate, incidental and customarily or necessarily related to the District and to the Principal Use of the Lot or to that of a Main Building on the Lot. The term does not include a Dwelling or a guest house in any R or A District.’ (Emphasis added.)‘8–20.3 ACCESSORY USE. Accessory Use means a Use which is appropriate, subordinate, incidental and customarily or necessarily related to a lawfully existing Principal Use on the same Lot or Building Site and does not alter the essential characteristics of such Principal Use as a whole and as related to other Uses permitted in the same District.’‘8–25.4 ACCESSORY USES: A DISTRICTS. When located in an A District, and subordinate to a lawful Use, the following Accessory Uses, in addition to those normally accessory to a Dwelling are permitted:a) Farm buildings, including stable, barn, pen, corral, or coop;b) Building or room for packing or handling products raised on the premises;c) Killing and dressing of poultry, rabbits and other small livestock raised on the premises, but not including an abbatoir for sheep, cattle or hogs;d) Stand for the sale at retail of items produced or raised on the premises having a ground coverage not in excess of four hundred (400) square feet;e) Accessory Business Signs not exceeding an aggregate area of twenty (20) square feet; having no moving parts or illumination;f) Administrative office, maintenance building, when accessory to a Principal Use permitted by subparagraph (i) of Section 8–25.3 [hog ranch].'

7.  The majority incorrectly assume that the board expressly found the ‘villas' to be accessory structures.

8.  The majority attempts to distinguish the otherwise undefined ‘guest house’ from guest ‘villas' or ‘cottages' by reliance upon a bare condition stipulated by the board that the latter not be used as ‘dwelling units' as defined in ordinance section 8–20.15. That section in relevant part provides: ‘Dwelling Unit means a room . . . designed for use as separate living quarters . . . and constituted as a separate and independent housekeeping unit and having its own kitchen facilities consisting of one or more of the following: Sink, cooking facility or refrigerator.’

9.  It is noted that ordinance sections 8–91.0 and 8–91.1 set forth a procedural mechanism to resolve doubt concerning proper district classification of a use not otherwise listed in the zoning ordinance.

ELKINGTON, Associate Justice.

WEINBERGER, J.*, concurs.

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