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

SAN DIEGO BUILDING CONTRACTORS ASSOCIATION et al., Plaintiffs and Respondents, v. CITY COUNCIL OF the CITY OF SAN DIEGO, Defendant and Appellant.

Civ. 12607.

Decided: November 16, 1973

John W. Witt, City Atty., and Thomas F. Calverley, Deputy City Atty., for defendant and appellant. Webb, Welles, Isaac & Freedman and James R. Webb, San Diego, as amicus curiae on behalf of defendant and appellant. White, Price, Peterson & Robinson and Paul A. Peterson and James B. Mehalick, San Diego, for plaintiffs and respondents.


This appeal by the City of San Diego involves the validity of a chartered city's zoning ordinance adopted by the initiative process. The ordinance provides the height of buildings to be constructed within a prescribed coastal zone of the City of San Diego shall not exceed 30 feet.1 On November 7, 1972, a majority of the electors voted for adoption of the ordinance.

The trial court granted the respondents' motion for summary judgment addressed to the first and third of six causes of action alleged in their complaint for a declaratory judgment and injunctive relief filed December 1, 1972. The complaint alleges respondents, San Diego Building Contractors Association and Associated General Contractors of America, are California nonprofit corporations whose memberships are composed of organizations and individuals engaged in or otherwise interested in the construction of buildings and improvements on real property in San Diego. They allege some of the property is at present legally zoned for buildings which may have a height in excess of 30 feet and the property owners are assessed for and liable to pay taxes on the land. They also allege their property or that of their members is located within the zone described in the ordinance.

The first cause of action, seeking declaratory relief, challenges the validity of the ordinance on the basis the Charter of the City of San Diego does not permit the use of the initiative process to enact a zoning ordinance. The second cause of action, seeking declaratory relief, incorporates the allegations of the first cause2 and alleges the initiative ordinance is unconstitutional because it attempts to regulate in a field occupied by state law and is in conflict with the state law. The third cause of action alleges facts concerning adopting and enforcing the ordinance causing the expenditure of public tax monies and giving rise to the need for injunctive relief. The fourth and fifth causes of actions seek injunctive relief alleging, respectively, the adoption and enforcement of the zoning ordinance by the City Council will deny respondents the use of their property without due process, and the ordinance violates guarantees or equal protection. The sixth cause of action alleges the ordinance is overboard in scope and violates the Fourteenth Amendment.

After argument on the motion for summary judgment the trial court, on January 29, 1973, ordered the city's answer to the first and third causes of action stricken and judgment for respondents on those causes entered as follows:


‘The initiative zoning ordinance set forth in Exhibit A to plaintiffs' complaint is void as an initiative measure and has no force or effect as law because (1) it was enacted by the initiative process and mandatory procedures for hearings held by the Planning Commission and the City Council required by the City Charter of San Diego and the Government Code were not followed, and (2) the failure to hold such hearings has deprived plaintiffs of that due process of law guaranteed by the Fourteenth Amendment to the United States Constitution.


‘The City of San Diego has no right or authority to take any actions to treat or enforce said initiative zoning ordinance. Defendant and each and all of its attorneys, agents, servants and employees and all other persons acting in concert or participation with it, or with actual or constructive notice of such a decree are hereby permanently enjoined from declaring the purported initiative zoning ordinance adopted or enacted as a city ordinance, from taking any actions to enforce or implement the same, and from expending any public funds in connection with the above-mentioned action.'3

An important point not raised by the parties relates to the rule contained in Code of Civil Procedure section 437c that no judgment shall be entered prior to the termination of the action. Since the order on the motion for summary judgment pertains to only two of the six causes of action pleaded, it is, when viewed strictly as a summary judgment proceeding, a partial order which is nonappealable (King v. State of California, 11 Cal.App.3d 307, 310, 89 Cal.Rptr. 715; Lopes v. Capital Co., 192 Cal.App.2d 759, 762, 13 Cal.Rptr. 787).

The breadth of the order declaring the ordinance void and of no force or effect, however, makes determination of the remaining causes of action unnecessary for it affords respondents the essential relief they seek in the complaint. Additionally, the ‘motion for summary judgment’ proceedings in this case clearly show the parties had no factual issues to tender the court and sought only a determination of the purely legal question of the ordinance's constitutional validity. Under these circumstances we view the order entered January 29, 1973, as in the nature of a judgment on the pleadings from which an appeal lies. (See Jones-Hamilton Co. v. Franchise Tax Bd., 268 Cal.App.2d 343, 347, 73 Cal.Rptr. 896; 4 Witkin, Cal.Procedure, 2d Ed., Proceedings Without Trial, § 177, pp. 2829–2830.)4

The merits of the case involve two issues: (1) Does the San Diego City Charter require use of the means prescribed by general law to enact a zoning ordinance and thus preclude the people from using the initiative process to adopt the ordinance as is the case in a general law city;5 and (2) if not, does the use of the initiative process to adopt the ordinance violate guarantees of due process of law and make the ordinance invalid? We answer each question in the negative.

Initially, as pointed out in Bayless v. Limber, 26 Cal.App.3d 463, at pages 467 and 468, 102 Cal.Rptr. 647, 649, under article 1, section 2 of the California Constitution, ‘All political power is inherent in the people’ and under article 4, section 1 of the same document, ‘The legislative power of this State is vested in the California Legislature . . . but the people reserve to themselves the powers of initiative and referendum.’ In the case of a charter city dealing with municipal affairs, however, the legislative power is divided between the City Council on the one hand and the electors on the other. (See Cal.Const., art. 11, § 3, and art. 4, § 25; Dwyer v. City Council, 200 Cal. 505, 513, 253 P. 932; Lawing v. Faull, 227 Cal.App.2d 23, 29, 38 Cal.Rptr. 417.)

Subject only to constitutional limitations and preemptive state law, the charter of the city is the supreme law. (See Cal.Const., art. 11, § 3, subd. (a), and § 5, subd. (a); Harman v. City and County of San Francisco, 7 Cal.3d 150, 161, 101 Cal.Rptr. 880, 496 P.2d 1248.)

The initiative power extends to all municipal legislation. (Hopping v. Council of City of Richmond, 170 Cal. 605, 609–610, 150 P. 977; Dwyer v. City Council, supra, 200 Cal. 505, 511, 253 P. 932.) Included in such legislation are zoning ordinances which represent an exercise of the police power granted cities by California Constitution, article 11, section 7. (Lockard v. City of Los Angeles, 33 Cal.2d 453, 460, 202 P.2d 38; Dwyer v. City Council, supra, 200 Cal. 505, 511–512, 253 P. 932.)

The initiative power reserved to the people of a city by its charter must be liberally construed. (Farley v. Healey, 67 Cal.2d 325, 328, 62 Cal.Rptr. 26, 431 P.2d 650.) It is the duty of the courts to guard jealously this power of the people. (Martin v. Smith, 176 Cal.App.2d 115, 117, 1 Cal.Rptr. 307.)

Article III of the San Diego City Charter vests all of the city's legislative powers, ‘except such legislative powers as are reserved to the people by the Charter, and the Constitution of the State,’ in the City Council, ‘subject to the terms of this Charter and of the Constitution of the State of California.’ (§ 11, art. III, San Diego City Charter.) Section 23, also contained in article III relating to legislative power, provides in part:

‘The right to recall municipal officers and the powers of the initiative and referendum are hereby reserved to the people of the City. Ordinances may be initiated . . .. The Council shall include in the election code ordinance . . . an expeditious and complete procedure for the exercise by the people of the initiative, referendum and recall, including forms of petitions; provided that the number of signatures necessary on petitions for the initiation of an ordinance for the consideration of the Council shall be three per cent of the registered voters of the City at the last general City election; that for the direct submission of a measure to the people it shall require a petition signed by ten per cent of the registered voters of the City at the last general City election . . ..’

The City Council has complied with the charter mandate to adopt an election code ordinance and establish procedures for the exercise of the initiative. (See San Diego City Ord. § 27.2501 et seq., particularly §§ 27.2504 to 27.2508, incl.)

In article V of the Charter, entitled ‘Executive and Administrative Service,’ section 41(c) provides, in part:

‘The City Planning Commission shall be organized as provided by the laws of the State and have such powers and perform such duties as are prescribed by such laws.’

This language of the charter cannot properly be construed as excluding or otherwise limiting use of the initiative process for enacting zoning ordinances. The subject of section 41(c) is the City Planning Commission, not the City Council or people of the city. The section does not purport to limit the council or the people in the exercise of their powers otherwise provided for in the charter, nor does it prescribe their organization, powers or duties in the matter of zoning. In this regard the language of section 41(c) does not expressly refer to state zoning law provisions prescribing duties and powers for the City Council. (See, e. g., Gov.Code §§ 65850 and 65861.) The charter provision could and should have done so to make state law zoning duties of city councils applicable to the San Diego City Council.

Section 41(c) does no more than prescribe the organization, powers and duties of the City Planning Commission by reference to state law. With respect to zoning, it specifies the extent of the application to the City of San Diego of the state zoning law.6 Relating expressly to the City Planning Commission and to no other body, section 41(c) adopts the portions of state law prescribing the organization, powers and duties of planning commissions for the San Diego City Planning Commission.

The language of the charter provisions is clear. It is not necessary to use ‘liberal’ construction in favor of initiative and referendum powers to conclude the San Diego City Charter does not require use of the means prescribed by general law to enact a zoning ordinance. The initiative process is specifically and undeniably authorized as a means of adopting any ordinance. While it may be the City Planning Commission cannot literally comply with its duties under the charter to follow state laws in adoption of a zoning ordinance (see e. g., Gov.Code §§ 65854 and 65855, San Diego Municipal Code §§ 101.0206–101.0207, relating to giving notice, holding hearings and reporting to the City Council), there is no real contradiction between the charter provisions under consideration. The duties of the City Planning Commission are relegated to the power of the people in this instance. Even viewing the situation as presenting a case of disharmony in the charter provisions, those which reserve the greater power to the people to legislate will prevail. (See Hunt v. Mayor & Council of Riverside, 31 Cal.2d 619, 623, 191 P.2d 426; Duran v. Cassidy, 28 Cal.App.3d 574, 586, 104 Cal.Rptr. 793; Atlas Hotels, Inc. v. Acker, 230 Cal.App.2d 658, 661, 41 Cal.Rptr. 231.) Here, the initiative process would prevail.

Finally, if Government Code section 65800 makes it clear that the provisions of the State Zoning Law only set minimum standards to be observed in local zoning practices (Taschner v. City Council, supra, 31 Cal.App.3d 48, 63, 107 Cal.Rptr. 214), then Government Code section 65803 stating the provisions of the chapter do not apply to a chartered city make it equally clear the Legislature intended no such restrictions unless the charter of the city or the ordinance of the council so provided.

Are constitutional guarantees of procedural due process violated by use of the initiative to enact a zoning ordinance?7 We hold they are not violated.8

Initially, there is no question the due process rights of reasonable notice and opportunity to be heard attach to persons whose use of property would be affected by a zoning change of the type under consideration (Scott v. City of Indian Wells, 6 Cal.3d 541, 548–549, 99 Cal.Rptr. 745, 492 P.2d 1137; Kissinger v. City of Los Angeles, 161 Cal.App.2d 454, 464, 327 P.2d 10). The due process clause, however, guarantees no particular form of procedure (American Toll Bridge Co. v. Railroad Com., 12 Cal.2d 184, 207, 208, 83 P.2d 1).9

In the context of a referendum which changed the zoning of a chartered city the California Supreme Court in 1927 recognized sufficient notice to affected landowners and opportunity for them to be heard is afforded by the election process. In Dwyer v. City Council, supra, 200 Cal. 505, at page 516, 253 P. 932, at page 936, the court said:

‘. . . By the petition for a referendum the matter has been removed from the forum of the council to the forum of the electorate. The proponents and opponents are given all the privileges and rights to express themselves in an open election that a democracy or republican form of government can afford to its citizens upon any municipal or public affair. . . .’

From a notice and hearing standpoint the exercise of the referendum power is distinguishable from the exercise of the initiative in the case of a general law city which must comply with the state zoning law requiring notice and hearing before enacting the ordinance to be submitted to the people (Johnston v. City of Claremont, 49 Cal.2d 826, 836–837, 323 P.2d 71; Hurst v. City of Burlingame, supra, 207 Cal. 134, 141–142, 277 P. 308). Nevertheless, the elective process occurring after the city council acts on the measure is essentially identical in both cases. (See §§ 27.2530 and 27.2620, San Diego Municipal Code.) The above-quoted principle announced in Dwyer thus applies equally to the initiative process.

Other cases directly dealing with zoning initiatives in chartered cities recognize there is no deprivation of due process in this method. (See Duran v. Cassidy, supra, 28 Cal.App.3d 574, 586, 104 Cal.Rptr. 793; Bayless v. Limber, supra, 26 Cal.App.3d 463, 469–470, 102 Cal.Rptr. 647.) In Bayless the court observed it would be a strange result indeed if the organic law of the city, its charter, can be revised, amended or repealed by the initiative (Cal.Const., art. 11, § 3, subds. (b) and (c)) while ‘a lesser law, namely a zoning ordinance, could not be amended by the exercise of this same power.’ (Bayless v. Limber, supra, 26 Cal.App.3d 463, 469, fn. 5, 102 Cal.Rptr. 647, 650, fn. 5.)

Arguments criticizing the elective process because the extent to which persons may be heard too often depends on the size of one's pocketbook (Taschner v. City Council, supra, 31 Cal.App.3d 48, 64, 107 Cal.Rptr. 214) are not convincing in the absence of facts and figures demonstrating the correctness of the assertion and the implications it carries. While it is true people must normally pay to receive widespread distribution of a viewpoint during an election, the inability of persons, usually property owners, to do so is not demonstrated. Even assuming it is a fact the size of one's pocketbook determines the extent to which he may be heard, it is apparent no one is denied a reasonable opportunity to be heard during the elective process. A similar argument may well be raised with regard to wealth and the ability to be heard when applied to notice and hearing before a city planning commission or a city council. It has long been recognized that this reserve power given the people by the initiative process is the counterbalance to the influences of wealth and personal relationships which may occur in the legislative process (Gayle v. Hamm, 25 Cal.App.3d 250, 258, 101 Cal.Rptr. 628). The theory of relative wealth thus does not furnish a convincing basis for holding the zoning ordinance adopted by the people at a free and open election does not provide reasonable notice and opportunity to be heard.

Another argument suggested by respondents and mentioned in Taschner v. City Council, supra, 31 Cal.App.3d 48, at page 64, 107 Cal.Rptr. 214, relates to the fact a city zoning commission or legislative body has more alternative dispositions available (modification, approval, or rejection) than the electorate (approval or rejection only). This is true of any ordinance adopted by the initiative process. The point does not relate to the question whether the elective process affords a reasonable opportunity to be heard so much as it relates to the basic merit of accomplishing a given result by one means as compared to another.10 It is a fact, however, that in the same way an ordinance may be amended or modified by the council, so the people may, by the initiative process, later adopt an amended or different plan.

Of concern in this case is not whether one process for zoning is more meritorious than another as a matter of public policy; rather, it is whether the elective process involved in the jealously guarded initiative procedure affords constitutionally reasonable notice and opportunity to be heard to those who will be affected by a proposed zoning ordinance. The initiative process used by the City of San Diego provides constitutionally reasonable notice and opportunity to be heard. The exercise by the people of their reserved power with respect to this municipal affair must be upheld.

The judgment is reversed.


1.  The ordinance (No. 10896, submitted to voters as Proposition D) reads:‘Notwithstanding any section to the contrary, no building or addition to a building shall be constructed with a height in excess of thirty feet within the Coastal Zone off the City of San Diego. The words Coastal Zone, as used within this Ordinance, shall mean that land and water area of the City of San Diego from the northern city limits south to the border of the Republic of Mexico, extending seaward to the outer limit of city jurisdiction and extending inland to the location of Interstate 5 on January 1, 1971. This limitation shall not apply to that land area of the Coastal Zone bounded by National City on the south, San Diego Bay on the west and Laurel Street or the southwesterly projection of Laurel Street on the north.‘The base of measurement of the height shall be in accordance with the Uniform Building Code of 1970.‘Notwithstanding any section to the contrary, there shall be no exception to the provisions of this Ordinance.’

2.  Each following cause of action incorporates the allegations of all the causes preceding it.

3.  After the city filed a petition for a writ of supersedes, on March 14, 1973 we ordered enforcement of the judgment stayed until further order of this court.

4.  Declarations and memoranda of points and authorities relating to the motion were filed after the city answered the complaint on December 18, 1972. The case was thus at issue for purposes of using a motion for a judgment on the pleadings.

5.  In a general law city the cases repeatedly hold the initiative process cannot be used to enact a zoning ordinance. The reasons are: (1) the general law embodied in the state zoning law (Ch. 4 (§ 65800 et seq.) Title 1, Gov.Code) prescribes the method for enactment of zoning ordinances; (2) this mode is the measure of the power of general law cities to legislate on zoning matters; and (3) the state zoning law method does not include the initiative process (Hurst v. City of Burlingame, 207 Cal. 134, 140–141, 277 P. 308; Laguna Beach Taxpayers' Assn. v. City Council, 187 Cal.App.2d 412, 414–415, 9 Cal.Rptr. 775; Taschner v. City Council, 31 Cal.App.3d 48, 58, 61, 107 Cal.Rptr. 214).

6.  Government Code section 65803 provides the state zoning law ‘shall not apply to a chartered city, except to the extent that the same may be adopted by charter or ordinance of the city.’ A like provision applies to local planning (Gov.Code § 65700).

7.  Respondents do not assert the initiative procedure was improperly followed in adopting the ordinance. Nor is there an issue concerning whether the ordinance constitutes a reasonable exercise of the police power. (See Wilkins v. City of San Bernardino, 29 Cal.2d 332, 175 P.2d 542.)

8.  No California decision represents binding authority on the issue. Generally, the cases intimating the initiative process is constitutionally defective involve general law cities subject to the state zoning law. (See Footnote 5, supra.) They utilize the due process rationale as a supportive and alternative reason to the basic holding the state zoning law governing general law cities does not permit use of the initiative process. (See Hurst v. City of Burlingame, supra, 207 Cal. 134, 140–141, 277 P. 308, 311, ‘When the statute requires notice and hearing . . . the statutory notice and hearing then becomes necessary in order to satisfy the requirements of due process . . .’; Laguna Beach Taxpayers' Assn. v. City Council, supra, 187 Cal.App.2d 412, 417, 9 Cal.Rptr. 775.)Coming close to a direct holding on the due process issue alone is Taschner v. City Council, supra, 31 Cal.App.3d 48, 107 Cal.Rptr. 214, which also involved a general law city. In Taschner the court said amendments to the state zoning law ‘. . . may have vitiated the assumption which formed the basis for the rationale that the mode [prescribed by state law] is the measure of the power . . .’ (p. 65, 107 Cal.Rptr. p. 228), and nevertheless went on to conclude both Government Code section 65853 (mandating zoning ordinances of the type here in question to be adopted as provided by state law) and due process required compliance with state zoning laws. (See also People's Lobby, Inc. v. Board of Supervisors, 30 Cal.App.3d 869, 873–874, 106 Cal.Rptr. 666.)There is a split of authority on the issue in California and other states. (See Bayless v. Limber, supra, 26 Cal.App.3d 463, 467, fn. 3, 102 Cal.Rptr. 647; Taschner v. City Council, supra, 31 Cal.App.3d 48, 58, fn. 6, 107 Cal.Rptr. 214.)

9.  An initiative must be published before circulation and the printed sample ballot is mailed to the voters at least 10 days before the election (San Diego Municipal Code §§ 27.2202, 27.2203, 27.2504 and 27.2530).The purpose of the ballot pamphlet preparation and dissemination is to give the voters information concerning the measure. (See Hart v. Jordan, 14 Cal.2d 288, 292, 94 P.2d 808.)Under the state zoning law publication in a newspaper of general circulation at least 10 days before the hearing is the basic notice required in a city like San Diego (Gov.Code § 65854(b)). The city may and has provided for additional mailed or posted notice (San Diego Municipal Code § 101.0206).

10.  This, of course, is a legislative decision unless constitutional considerations compel a different method be utilzed.

COLOGNE, Associate Justice.

GERALD BROWN, P. J., and AULT, J., concur.