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ARNEL DEVELOPMENT COMPANY v. CITY OF COSTA MESA

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Court of Appeal, Fourth District, Division 2, California.

ARNEL DEVELOPMENT COMPANY, a California Corporation, et al., Petitioners and Appellants, v. CITY OF COSTA MESA, a Municipal Corporation, et al., Respondents.

SOUTH COAST PLAZA, a California Partnership, Plaintiff and Appellant, v. CITY OF COSTA MESA, a Municipal Corporation, et al., Defendants and Respondents.

Civ. 20505.

Decided: November 09, 1979

Rutan & Tucker, Leonard A. Hampel and Robert S. Bower, Santa Ana, for petitioners and appellants. Latham & Watkins, Robert E. Currie and Robert K. Break, Newport Beach, for plaintiff and appellant South Coast Plaza. R. R. Campagna, City Atty., Thomas C. Wood, Asst. City Atty., and Mark J. Huebsch, Deputy City Atty., for respondent City of Costa Mesa. George Deukmejian, Atty. Gen., E. Clement Shute, Jr., Asst. Atty. Gen., and Daniel P. Selmi, Deputy Atty. Gen., for the People of the State of California as amicus curiae.

These are two appeals in consolidated actions1 from a judgment upholding the validity of an initiative ordinance adopted by the voters of the City of Costa Mesa (city) restrictively rezoning four specific, relatively small parcels of undeveloped privately owned property. Appellants advance myriad arguments in support of their contentions that the initiative ordinance is invalid.2 However, we have concluded that the rezoning of specific, relatively small parcels of privately owned property is essentially adjudicatory, rather than legislative in nature, and is not therefore a proper subject of initiative action. Accordingly, the judgment must be reversed with directions to the trial court to enter judgment declaring the ordinance invalid. We do not reach the other intriguing questions presented.

The initiative ordinance purported to rezone three contiguous properties comprising a total of approximately 68 acres of the 10,003 acres of property within the City of Costa Mesa as a whole. Hence our characterization, “relatively small.”

The largest property affected is referred to be the parties as the Arnel property. It consists of approximately 50 acres gross, divided into two parcels: one of approximately 8.5 net acres (parcel A) and one of approximately 38 net acres (parcel B). A second property, referred to by the parties as the South Coast Plaza property, consists of approximately 13 acres of undeveloped land north of and contiguous to parcel B of the Arnel property. The third affected property is a parcel of approximately 4.6 acres of undeveloped land north of and contiguous to the South Coast Plaza property. The parties refer to it as the Roberts property.

The land use map of the Costa Mesa General Plan originally designated the Roberts and the South Coast Plaza properties as high-density residential. In 1972 both properties were redesignated medium-density residential. Prior to the initiative, both properties were zoned A-1 (general agricultural), which in practical effect was a holding zone; no developmental plans had been submitted to the city for development of either of the two properties.

The Arnel property is bordered on the north and west by residential property. On the east is the South Coast Plaza shopping center, a large regional commercial center. At the southern boundary of the property is the San Diego Freeway (I-405). In city's general plan the Arnel property was originally designated as high-density residential. In 1972 city adopted a general plan amendment by which property including the Arnel property was designated “Public, Semi-Public” in contemplation of development of the property as a large-scale recreation-oriented commercial property. However, it was provided that if the Arnel property was not so developed, the designation would become medium-density residential. In September 1976 city's general plan was again amended, designating the 8.5-acre parcel A as low-density residential and the 38-area parcel B as medium-density residential. Parcel A was then zoned A-1 (general agricultural) and parcel B was zoned C-R (commercial-recreational). In November 1976 a specific plan pertaining to development of the Arnel property was adopted, and pursuant to the specific plan, the property was rezoned to PDR-LD (Planned Development Residential-Low Density) and PDR-MD (Planned Development Residential-Medium Density). Thereafter, pursuant to city's planned development ordinance, an application for a zone exception permit was made and a preliminary development plan was submitted for the Arnel project. On July 18, 1977, contemporaneously with approval of the final development plan a tentative tract map for the project was approved by city. In its final form, subject to numerous conditions suggested by the planning commission, the project was to consist of 127 single-family residences on approximately 23 net acres and 539 apartment units on another approximately 23 net acres.

Shortly after city's approval of the preliminary development plan, members of the North Costa Mesa Homeowner's Association commenced circulating an initiative petition for the adoption of an ordinance rezoning the Arnel, Roberts and South Coast Plaza properties to R-1 (single-family residential).3 The purpose of the initiative was to defeat the Arnel project and to prevent any development of the Arnel, Roberts and South Coast Plaza properties other than for single-family residential uses. The R-1 zoning was chosen simply because it was the most restrictive in terms of land use and development.

On November 7, 1977, after submission of the signed initiative petition to city, the city council determined to submit the initiative measure to the voters at the regular municipal election on March 7, 1978. At the election, the initiative measure passed. Out of 36,411 registered voters, 4,295 voted in favor of the measure and 3,901 voted against it. Thereafter city refused to process the final tract map or applications for building permits for the Arnel project (see fn. 2 (2d par.), Ante ), and this litigation ensued (see fn. 1, Ante ).

One of appellants' prime contentions is that the rezoning of specific, relatively small parcels of privately owned property is essentially adjudicatory in nature, constitutionally requiring notice and hearing not afforded by the initiative process. However, we find it unnecessary to discuss the sufficiency of the notice and opportunity for hearing provided by the initiative process (see, e. g., San Diego Bldg. Contractors Assn. v. City Council, 13 Cal.3d 205, 222-224, 118 Cal.Rptr. 146, 529 P.2d 570 (dis. opn. by Burke, J.); Taschner v. City Council, 31 Cal.App.3d 48, 64, 107 Cal.Rptr. 214 (disapproved on related but separate points by San Diego Bldg. Contractors Assn. v. City Council, supra, 13 Cal.3d at p. 216, 118 Cal.Rptr. 146, 529 P.2d 570 and Associated Home Builders etc., Inc. v. City of Livermore, 18 Cal.3d 582, 596, fn. 14, 135 Cal.Rptr. 41, 557 P.2d 473), but see Bayless v. Limber, 26 Cal.App.3d 463, 469-470, 102 Cal.Rptr. 647; Duran v. Cassidy, 28 Cal.App.3d 574, 585-586, 104 Cal.Rptr. 793.) Our conclusion that the rezoning of specific, relatively small parcels of privately owned property is essentially adjudicatory in nature rather than legislative is dispositive, for it is fundamental that the initiative power pertains only to legislative, not adjudicatory or administrative acts. (Cal.Const., art. IV, s 1;4 Simpson v. Hite, 36 Cal.2d 125, 129, 222 P.2d 225; cf. referendum cases: Wheelright v. County of Marin, 2 Cal.3d 448, 457, 85 Cal.Rptr. 809, 467 P.2d 537; Johnston v. City of Claremont, 49 Cal.2d 826, 834, 323 P.2d 71 (language pertinent to another issue disapproved in Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d at p. 596, fn. 14, 135 Cal.Rptr. 41, 557 P.2d 473); Dwyer v. City Council, 200 Cal. 505, 511, 253 P. 932; Hopping v. Council of City of Richmond, 170 Cal. 605, 611, 150 P. 977, see Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d at p. 596, fn. 14, 135 Cal.Rptr. 41, 557 P.2d 473 (2d par.); San Diego Bldg. Contractors Assn. v. City Council, supra, 13 Cal.3d at p. 212, fn. 5, 118 Cal.Rptr. 146, 529 P.2d 570 and accompanying text; Duran v. Cassidy, supra, 28 Cal.App.3d at pp. 580-582, 104 Cal.Rptr. 793; Fletcher v. Porter, 203 Cal.App.2d 313, 321, 21 Cal.Rptr. 452; Glenn, State Law Limitations on the Use of Initiatives and Referenda in Connection with Zoning Amendments, 51 So.Cal.L.Rev. 265, 286, 294 (hereafter cited as Glenn, Rezoning by Referendum or Initiative ).) As stated by the Dwyer court with admirable precision: “It is plain that Only ordinances of a municipality Which involve an exercise of the legislative prerogative are subject to the initiative and referendum.” (200 Cal. at p. 511, 253 P. at p. 934, emphasis added.)

The crucial question, therefore, is whether the ordinance at hand is properly characterized as legislative or adjudicatory in nature. Uniquely, all the parties to this litigation agree that in substance it is essentially adjudicatory in nature.5 Definitional analysis, functional analysis, the most recent pronouncements of the California Supreme Court, and a growing number of sister-state decisions persuade us that the parties' characterization of the ordinance as essentially adjudicatory is correct.

There are, of course, a number of decisions holding or stating that zoning ordinances or other ordinances regulating land use are legislative in nature and may be enacted by initiative. (Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d at pp. 590-596, 135 Cal.Rptr. 41, 557 P.2d 473; San Diego Bldg. Contractors Assn. v. City Council, supra, 13 Cal.3d at pp. 210-218, 118 Cal.Rptr. 146, 529 P.2d 570; Bayless v. Limber, supra, 26 Cal.App.3d at pp. 467-468, 102 Cal.Rptr. 647; see Duran v. Cassidy, supra, 28 Cal.App.3d at pp. 580-586, 104 Cal.Rptr. 793; Fletcher v. Porter, supra, 203 Cal.App.2d at pp. 321-324, 21 Cal.Rptr. 452; cf. referendum cases: Wheelright v. County of Marin, supra, 2 Cal.3d at pp. 457-458, 85 Cal.Rptr. 809, 467 P.2d 537; Johnston v. City of Claremont, supra, 49 Cal.2d at pp. 835-838, 323 P.2d 71; Dwyer v. City Council, supra, 200 Cal. at pp. 511-519, 253 P. 932.) In addition, a substantial number of decisions not concerned with the propriety of initiative or referendum have characterized the enactment of zoning ordinances or other ordinances regulating land use as legislative. (See, e. g., Horn v. County of Ventura, 24 Cal.3d 605, 613, 156 Cal.Rptr. 718, 596 P.2d 1134; Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506, 517, 113 Cal.Rptr. 836, 522 P.2d 12; Lockard v. City of Los Angeles, 33 Cal.2d 453, 460, 202 P.2d 38; Mountain Defense League v. Board of Supervisors, 65 Cal.App.3d 723, 728, 135 Cal.Rptr. 588.) However, the cited decisions and the rules they articulate do not control the case at bench. The ordinances involved in those cases, except for one or possibly two which we shall discuss, either were not truly land use regulations or were General zoning or land use enactments, that is, either comprehensive zoning regulations or specific land use regulations applicable generally to all property within the jurisdiction or at least to all property in the same class within the jurisdiction. The enactment of such an ordinance is unquestionably a legislative function. (Horn v. County of Ventura, supra; San Diego Bldg. Contractors Assn. v. City Council, supra.)

While many of the cited decisions neither take note of nor discuss the distinction, the Supreme Court in its more recent decisions has taken great pains to distinguish between general zoning or land use regulations, which are legislative in nature, and “the great number of more limited . . . zoning decisions, such as the grant of a variance or the award of a conditional use permit, which are adjudicatory in nature . . . .” (San Diego Bldg. Contractors Assn. v. City Council, supra, 13 Cal.3d at p. 212 (also see fn. 5), 118 Cal.Rptr. at p. 150, 529 P.2d at p. 574; see also Horn v. County of Ventura, supra, 24 Cal.3d at p. 613, 156 Cal.Rptr. 718, 596 P.2d 1134; Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d at p. 517, 113 Cal.Rptr. 836, 522 P.2d 12; Mountain Defense League v. Board of Supervisors, supra, 65 Cal.App.3d at pp. 728-729, 135 Cal.Rptr. 588, cf. Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d at p. 596, fn. 14 (2d par.) 135 Cal.Rptr. 41, 557 P.2d 473.)

The essence of and basis for the “legislative-adjudicatory” distinction were noted, discussed and applied in Horn v. County of Ventura, supra, 24 Cal.3d at pp. 613-614, 156 Cal.Rptr. at pp. 722, 596 P.2d at pp. 1138: “We adopted similar reasoning recently in San Diego Bldg. Contractors Assn. v. City Council (1974) 13 Cal.3d 205, 118 Cal.Rptr. 146, 529 P.2d 570 (72 A.L.R.3d 973), in which we concluded that the enactment of a general zoning ordinance by a city's voters under the initiative process, being ‘legislative’ in character, required no prior notice and hearing, even though it might well be anticipated that the ordinance would deprive persons of significant property interests. (P. 211, 118 Cal.Rptr. 146, 529 P.2d 570.) In so holding, we distinguished ‘adjudicatory’ matters in which ‘the government's action affecting an individual (is) determined by facts peculiar to the individual case’ from ‘legislative’ decisions which involve the adoption of a ‘broad, generally applicable rule of conduct on the basis of general public policy.’ (Pp. 212-213 (118 Cal.Rptr. 146, 529 P.2d 570); see also United States v. Florida East Coast R. Co. (1973) 410 U.S. 224, 245, 93 S.Ct. 810, 35 L.Ed.2d 223, 239; Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34-35, fn. 2, 112 Cal.Rptr. 805, 520 P.2d 29; Patterson v. Central Coast Regional Com. (1976) 58 Cal.App.3d 833, 840-841, 130 Cal.Rptr. 169.)

“ . . .

“Subdivision approvals, like variances and conditional use permits, involve the application of general standards to specific parcels of real property. Such governmental conduct, affecting the relatively few, is ‘determined by facts peculiar to the individual case’ and is ‘adjudicatory’ in nature.”

On a definitional basis it must be concluded that the rezoning ordinance in the case at bench is adjudicatory rather than legislative in character. The general policy of the City of Costa Mesa with respect to zoning and land use is found in its general plan and comprehensive zoning ordinance. The ordinance in the case at bench simply prescribes, or more accurately proscribes, a particular use of four specific parcels of real property, privately owned and constituting only a minute fraction of the zoned property within the City of Costa Mesa. The ordinance does not establish any criteria whatever; it is not generally applicable to all property within the city nor even to all property within a particular zoning classification; it relates to specific uses of specific parcels of property under the general criteria found in city's general plan and comprehensive zoning ordinance.

As stated in the lead opinion in West v. City of Portage (1974) 392 Mich. 458, 221 N.W.2d 303: “There is increasing awareness that ‘(z)oning decisions may be either administrative or legislative depending upon the nature of the act,’ and that while the enactment of a comprehensive plan and zoning code, a policy making decision, is legislative, an amendment reclassifying particular land, essentially an adjudication of the rights of proponents and opponents of the proposed zoning change, constitutes an administrative or adjudicatory act.” (221 N.W.2d at p. 308, quoting from Fleming v. Tacoma (1972), 81 Wash.2d 292, 502 P.2d 327, 331.)

Further: “The Supreme Court of Oregon has said that it would ignore ‘reality to rigidly view all zoning decisions by local governing bodies as legislative acts. * * * Ordinances laying down general policies without regard to a specific piece of property are usually an exercise of legislative authority * * * . On the other hand, a determination whether the permissible use of a specific piece of property should be changed is usually an exercise of judicial authority * * * .’ ” (221 N.W.2d at p. 308, quoting from Fasano v. Board of County Commissioners of Washington County (1973) 264 Or. 574, 507 P.2d 23, 26; accord: Leonard v. City of Bothell (1976) 87 Wash.2d 847, 557 P.2d 1306, 1309; cf. Snyder v. City of Lakewood (1975) 189 Colo. 421, 542 P.2d 371, 373-374; see also Glenn, Rezoning by Referendum or Initiative, supra, 51 So.Cal.L.Rev. at p. 300; Comment, Zoning Amendments The Product of Judicial or Quasi-Judicial Action, 33 Ohio St.L.J. 130, 137-138.)

Functional analysis leads to the same conclusion. In Scott v. City of Indian Wells, 6 Cal.3d 541, 99 Cal.Rptr. 745, 492 P.2d 1137, the city granted a conditional use permit for the construction of a large planned development (two golf courses, tennis courts, clubhouses, 675 condominium units, and 90 individual lots). (6 Cal.3d at p. 544, 99 Cal.Rptr. 745, 492 P.2d 1137.) The Supreme Court in San Diego Bldg. Contractors Assn. v. City Council, supra, 13 Cal.3d at p. 217, 118 Cal.Rptr. at p. 153, 529 P.2d at p. 577, pointed out in no uncertain terms that “the zoning matter at issue (in Scott v. City of Indian Wells, supra ) did not involve the enactment of a general legislative zoning ordinance . . . but instead an administrative determination . . . on an application for a conditional use permit for a particular parcel of land.” The court concluded that issuance of the conditional use permit by the city permitting the property to be used for construction of the extensive project was “administrative, adjudicatory (in) nature.” (13 Cal.3d at p. 217, 118 Cal.Rptr. 146, 529 P.2d 570.) Except for the procedural form the cities' actions took and the fact that in Scott the land use had been permitted by the city whereas here the land use would be prohibited by the city through the initiative ordinance, there is no distinction between the actions of the two cities. On a functional basis there is no difference at all. In Scott the action of the city was the granting of a conditional use permit; here the action of the city takes the form of an initiative ordinance. But the form in which governmental action is cast is of no consequence. (Cf. Hopping v. Council of City of Richmond, supra, 170 Cal. at p. 611, 150 P. 977, see Glenn, Rezoning by Referendum or Initiative, supra, 51 So.Cal.L.Rev. at p. 295.) As implicitly recognized by the court in Dwyer v. City Council, supra, 200 Cal. at p. 511, 253 P. 932, the Enactment of an ordinance, which is undoubtedly legislative in form, may constitute the exercise of administrative or adjudicatory authority.

Even more fundamentally, several courts have recognized that the decision whether to permit a specific parcel of property to be used for a particular purpose in accordance with general criteria found in a general plan or comprehensive zoning ordinance involves very largely the resolution of a dispute between the proponents and opponents of the change of use proposed. As stated by the court in Leonard v. City of Bothell, supra : “(I)n amending a zoning code, or reclassifying land thereunder, the same body, in effect, makes an adjudication between the rights sought by the proponents and those claimed by the opponents of the zoning change. The parties whose interests are affected are readily identifiable. Although important questions of public policy may permeate a zoning amendment, the decision has a far greater impact on one group of citizens than on the public generally.” (557 P.2d at p. 1309, quoting from Fleming v. Tacoma, supra, 502 P.2d at p. 331; see also West v. City of Portage, supra, 221 N.W.2d at p. 308; Glenn, Rezoning by Referendum or Initiative, supra, 51 So.Cal.L.Rev. at p. 296, fn. 136, p. 305.)

Having concluded that the rezoning of appellants' property is adjudicatory in nature, it is incumbent upon us to discuss two decisions of the Supreme Court which might be interpreted as supporting a contrary conclusion: Johnston v. City of Claremont, supra, 49 Cal.2d 826, 323 P.2d 71, and Dwyer v. City Council, supra, 200 Cal. 505, 253 P. 932. The parties purport to distinguish these cases on the basis that they involve exercises of the power of referendum rather than initiative and are, therefore, considerably different from the case at bench with respect to the notice and opportunity for hearing afforded. (See Dwyer v. City Council, supra, 200 Cal. at pp. 515-516, 253 P. 932; Johnston v. City of Claremont, supra, 49 Cal.2d at pp. 836-837, 323 P.2d 71.) However, as indicated at the outset, we think it inappropriate to attempt to resolve the issue presented by reference to the due process requirement of notice and hearing. The notice and hearing requirement is held not to exist unless the governmental action involved is adjudicatory as opposed to legislative in nature. (Horn v. County of Ventura, supra, 24 Cal.3d at pp. 612, 613, 156 Cal.Rptr. 718, 596 P.2d 1134.) But having determined that the governmental action is not legislative, neither initiative nor referendum is available, and, logically, the problem as to whether the referendum process gives adequate notice and hearing whereas the initiative process does not cannot be reached. Consonant with these observations, the Supreme Court in Associated Home Builders etc., Inc. v. City of Livermore, supra, stated: “Hurst (Hurst v. City of Burlingame, 207 Cal. 134, 277 P. 308) erred in distinguishing Dwyer v. City Council, supra, 200 Cal. 505, 253 P. 932, on the ground that Dwyer involved a referendum on a zoning ordinance (whereas Hurst involved an initiative); as Dwyer itself pointed out, ‘if the right of referendum can be invoked, the corollary right to initiate legislation must be conceded to exist.’ (200 Cal. at p. 511, 253 P. 932.)” (18 Cal.3d at p. 595, 135 Cal.Rptr. at p. 48, 557 P.2d at p. 480.)

It must be conceded that on its facts the decision in Johnston v. City of Claremont appears to be inconsistent with the conclusion we have reached. However, we are somewhat uncertain as to the rule the court intended to establish. It expressly noted: “(T)his is an entirely different situation from one in which a zoning ordinance confers upon the council or an official the power to grant an easement or variance in a particular case.” (49 Cal.2d at p. 835, 323 P.2d at p. 76.) However, the opinion contains no indication as to what factors the court found to be “different.” Its conclusion that the ordinance there involved constituted an exercise of legislative authority appears to have been based upon the rather simplistic notion, wholly inconsistent with later decisions, that since the original zoning amendment constituted a legislative act, any amendment to the ordinance must also constitute a legislative act. (49 Cal.2d at p. 835, 323 P.2d 71; see somewhat similar reasoning in Dwyer v. City Council, supra, 200 Cal. at pp. 514-515, 253 P. 932.) The acceptance of this non sequitur foreclosed the court from any meaningful consideration of the “legislative-adjudicatory” distinction, and whatever precedential value the Johnston decision may have had with respect to that vital distinction must be considered to have been eliminated by such recent decisions of the Supreme Court as Horn v. County of Ventura, supra, 24 Cal.3d at pp. 612-614, 156 Cal.Rptr. 718, 596 P.2d 1134; San Diego Bldg. Contractors Assn. v. City Council, supra, 13 Cal.3d at p. 217, 118 Cal.Rptr. 146, 529 P.2d 570; and Scott v. City of Indian Wells, supra, 6 Cal.3d 541, 99 Cal.Rptr. 745, 492 P.2d 1137.

Although there is some language in Dwyer v. City Council, supra, 200 Cal. at pp. 512-515, 253 P. 932, that might be interpreted otherwise, we believe that decision is consistent with the conclusion we have reached. Some uncertainty results from the fact that neither the language of the ordinance adopted by the city council nor the language of the referendum measure involved in that case is set forth in the opinion. Conceivably the ordinance could properly be characterized as a general land use regulation. In any event, whether rightly or wrongly, it is clear from the opinion that the court felt it was dealing with a land use regulation of general application. At one point the court spoke of “zoning legislation reclassifying a District.” (200 Cal. at p. 514, 253 P. 932, emphasis added.) Later it spoke of “an amendment to the general zoning law which reclassifies A portion of the city's territory.” (200 Cal. at p. 515, 253 P. at p. 936; emphasis added.) Most significant is the court's language in distinguishing the street improvement cases: “Street improvement laws must from the nature of the results to be attained operate upon districts or fractional parts of cities, and it was not within the contemplation or intention of the framers of the law that they should be treated as general, comprehensive schemes. In none of the street improvement cases cited was the question of an amendment affecting an ordinance that operated upon all portions of the municipality and had been adopted in its entirety touched upon. In the instant case the zoning law from the first was treated by the council as a general, comprehensive plan, molded, fashioned, and balanced with reference to the city as a whole. In Chase v. Kalber, supra, (28 Cal.App. 561, 153 P. 397) Mr. Justice Hart, in a very learned and analytical discussion, points out the impracticable results that would follow if the street improvement acts were made subject to the operation of the initiative and referendum provisions of the law, and the serious hampering of the orderly administration of the public business that would follow. He arrives at the conclusion that, by reason of the chaos and disorder that would follow, it could not have been the intention of the people to apply the referendum and initiative to a law that was essentially local in character. No such argument can be applied to the situation confronting us.” (200 Cal. at pp. 518-519, 253 P. at p. 937; emphasis added.)

Thus, in our view the Dwyer decision stands for the still accepted proposition that general zoning or land use ordinances are legislative in character and subject to the initiative and referendum. (Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d at pp. 590-596, 135 Cal.Rptr. 41, 557 P.3d 473; San Diego Bldg. Contractors Assn. v. City Council, supra, 13 Cal.2d at pp. 210-218, 118 Cal.Rptr. 146, 529 P.2d 570.) However, we observe with some uneasiness the statement by the court in Dwyer, reminiscent of the reasoning in Johnston, that “(a) zoning ordinance as amended becomes in effect a different ordinance.” (200 Cal. at p. 515, 253 P. at p. 936.) If the court meant that, since a comprehensive zoning ordinance of general application is unquestionably legislative, any amendment to that ordinance must necessarily constitute an exercise of legislative authority, that portion of the opinion cannot be considered to have continuing vitality in light of the “legislative-adjudicatory” distinction analysis found in the more recent Supreme Court decisions previously cited.

The judgment is reversed with directions to the trial court to include in its final judgment a declaration that the initiative ordinance is invalid. Upon remand, the trial court shall conduct such further proceedings as may be necessary to dispose of any remaining untried issues such as whether or not Arnel Development Company is entitled to have its final tract map approved and building permits issued by city. (See fn. 2, (2d par.), Ante.) Inasmuch as the parties were not at odds with respect to the dispositive issue, it is appropriate in the interest of justice that the parties bear their own respective costs of appeal, and it is so ordered.

FOOTNOTES

1.  Orange County Superior Court action No. 287707 was initiated by a petition for writ of mandate and a complaint for injunctive and declaratory relief by Arnel Development Company, a California corporation, A & R, a general partnership, and R & A, a limited partnership, George L. Argyros and Harry S. Rinker, proprietors of these enterprises, and Genji Kawamura. Action No. 287708 was initiated the same day, April 4, 1978, by the filing of a complaint for declaratory relief by South Coast Plaza, a California partnership. Pursuant to stipulation the actions were consolidated for all purposes prior to trial.

2.  Some of appellants' contentions are that the initiative ordinance is invalid because the proponents failed to comply with various provisions of the Elections Code, because they submitted untrue and misleading information to the electorate, because the initiative process did not afford appellants procedural due process and the initiative ordinance denies them equal protection of laws and because no compliance was had with the California Environmental Quality Act (Pub.Res.Code, s 21000, et seq.). The Attorney General was granted leave to appear as amicus curiae with respect to the applicability of CEQA.The parties also dispute whether or not Arnel Development Company is entitled to have its final tract map approved and building permits issued by city. City asserts the minimum permissible lot size is now increased so that, while the final tract map must be approved, city is not required to issue building permits. The contesting parties cite and discuss Youngblood v. Board of Supervisors, 22 Cal.3d 644, 150 Cal.Rptr. 242, 586 P.2d 556, decided after trial in these actions had concluded. However, we do not pass upon the question because the court's findings do not establish the factual matrix requisite to appellate review, and, although the prayer in 287707 requested that city be mandated to process and approve the final tract map and building permits, the trial court apparently did not determine these matters because of its conclusion the ordinance was valid.

3.  The ordinance read: “The people of Costa Mesa do ordain that the following described land within the City of Costa Mesa shall be zoned R-1 Single Family Residential District and the use thereof restricted to Single-Family Dwelling Units. All that land located within the area bounded by Bear Street on the East, Sunflower Avenue on the North, South Coast Drive on the South, and Tracts numbered 7557 and 7718 on the West (tracts 7557 and 7718 are commonly known as ‘The Greenbrook Tract’); together with all that land north of the San Diego Freeway and West of Bear Street included within the Tentative Map of Tract 9936 for Arnel Development Company.”

4.  California Constitution, article IV, section 1, reads:“The legislative power of this State is vested in the California Legislature . . . , but the people reserve to themselves the powers of initiative and referendum.”Article 2, section 11, provides for exercise of the power of initiative and referendum at the local level as follows: “Initiative and referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide. This section does not affect a city having a charter.”

5.  Representatives of the City of Costa Mesa advised the proponents of the initiative that this would be the city's position and unsuccessfully urged the proponents to become a party to this litigation.

KAUFMAN, Associate Justice.

GARDNER, P. J., and McDANIEL, J., concur.

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