LA QUINTA DUNES v. CITY OF LA QUINTA (1990)

OPINION

This case involves a land-use/development dispute which has arisen between realty developers (hereinafter, “Dunes”) and a city (as well as its individual city council members—hereinafter, collectively, “the City”) with respect to the City's zoning policies and (in)actions.   The dispute has taken the form of a combined writ petition/civil action filed by Dunes against the City.   The trial court granted Dunes' petition for various writs to compel the City to undertake certain land-use planning measures.   At the same time, the trial court dismissed the various petitions for relief and causes of action set forth in Dunes' petition/action based on an alleged violation of the California public meeting law (Gov.Code § 54950, et seq.—“the Brown Act”) by the individual members of the City's governing body, its city council.   The City has appealed from the granting of the writ petition while, at the same time, Dunes has cross-appealed from the dismissal of the Brown Act issues from the civil action.   We conclude that the trial court violated the constitutional “separation of powers” doctrine in granting Dunes' writ petition and that the judgment must therefore be reversed with regard to the City's appeal.   Further, we also conclude that the trial court's dismissal of the Brown Act issues from Dunes' civil action constitutes an unappealable order and that, consequently, Dunes' cross-appeal must be dismissed.

FACTS

Given the limited grounds upon which we have based our decision in this matter, a detailed rendition of facts is not necessary.   Some historical context is helpful, however, in understanding the nature of the dispute.

Prior to its incorporation as a city in 1982, the territory encompassed by the City's boundaries was a part of unincorporated Riverside County and subject to that county's land-use regulations.   Upon incorporation, the City adopted (by reference) the county general plan and zoning regulations which previously had been applicable within the City's territory.   The “inherited” zoning ordinance classification which applied to Dunes' property permitted low-density, residential development.

From 1983 to 1985, with an eye to adopting its own general plan, the City engaged in a long-range study and analysis of its land-use needs and priorities.   In November 1985, the City adopted a general plan of its own.   Under the City's general plan, Dunes' property was located in an area designated for a higher density of residential development than that which was allowed by the existing “inherited” zoning ordinance.   Dunes did not immediately seek a zoning amendment to bring the zoning classification of its property into conformity with that area's newly adopted general plan land-use designation, but it did begin almost immediately to work with the City's planning staff in developing and processing a proposal to build an apartment complex on its property—which proposal was to include, at the appropriate time, a request for a zone change.

In June 1987, Dunes applied for a zone change for its property.   The zone change application (in the form of a proposed ordinance) progressed smoothly at first, receiving approval from the City's planning commission and passing beyond a first reading before the city council to a second reading.   At that second reading, however, the proposed zone change ordinance met public opposition.   As a result, the city council continued the second reading and directed the planning commission to prepare a report as to the appropriateness of the general plan classification for Dunes' property.

After further study and consideration, the planning commission concluded that the high density general plan classification pertinent to Dunes' property was appropriate.   This conclusion was considered by the city council in a public hearing held in November 1987 for the second reading of the zone change ordinance.   At that meeting, the second reading of the zone change ordinance was once again continued to allow for further consideration by the council members.

In January 1988, the second reading of the zone change ordinance once again came before the city council.   Following yet another public hearing on the matter (during one portion of which the city council, contrary to the requirements of the Brown Act, went into closed session without announcing the purpose for so doing), the city council determined that a broad reexamination of the appropriateness of all high density general plan classifications within the city was needed and ordered that such a reexamination be undertaken.   At the same time, the city council continued the second reading of the zone change ordinance until such time as the reexamination could be completed and assessed.

Shortly thereafter, Dunes brought its action against the City.   The action was twofold in character, seeking relief both by way of extraordinary writ and by way of civil suit.   In particular, the action:  (1) Petitioned for writs of (a) traditional mandamus, (b) administrative mandamus and (c) prohibition;  and (2) asserted civil causes of action for (a) a violation of civil rights under 42 U.S.C., section 1983, (b) inverse condemnation, (c) declaratory relief with respect to the issue of inconsistency between the zoning classification and the general plan classification, (d) injunctive relief with respect to the issue of the city council's failure to abide by the Brown Act, and (e) declaratory relief with respect to the same Brown Act issue.

The trial court issued the alternative writs prayed for by Dunes and set the matter for hearing.   The City then filed a motion, based on several grounds, to have the entire matter dismissed.   The hearing on the City's motion to dismiss was consolidated with that to be held on the writs.   Following the hearing, the trial court ruled to the effect that:  (1) Writs would issue to (a) compel the City to adopt a zoning ordinance consistent with the extant general plan land-use classification relating to Dunes' property and (b) prohibit the City from amending the extant general plan until such time as Dunes' application to develop its property with a high density project was approved;  and (2) Dunes' Brown Act cause of action was dismissed.  (It is unclear exactly which Brown Act pleadings were encompassed by the trial court's dismissal.)

On June 1, 1988, judgment was entered in the trial court.   In pertinent part, the judgment provided only that the City was mandated “to forthwith adopt an Ordinance No. 113A, approving Change of Zone 87–026, so as to effect a change in zone to R–3, (eight—to—sixteen (8–16) units per acre)” and that the City was prohibited “from enacting any further amendment to the land use element of the La Quinta General Plan with respect to [Dunes'] property, namely as to the density, i.e., no less than eight (8) or more than sixteen (16) units per acre (R–3).”   No other written judgment or order was ever entered in the trial court.

The City has appealed from the written judgment entered by the trial court, basing its appeal on a variety of grounds—including an assertion that the trial court acted in excess of jurisdiction and violated the “separation of powers” doctrine in attempting to judicially control the City's legislative power.   As discussed below, we agree with this assertion and reverse the trial court on this ground.   We specifically decline to reach the other contentions and assertions made by the City on appeal.   As we also discuss below, we find that Dunes' cross-appeal from the dismissal of the Brown Act cause(s) of action has been taken from an unappealable order and must, for that reason, be dismissed.

Further facts will be referenced, as needed, in the discussion which follows.

In that it requires the less extensive discussion, we turn first to the unappealability of the cross-appeal.

DISCUSSION

I. THE UNAPPEALABILITY OF THE CROSS–APPEAL

There are two primary reasons why the trial court's dismissal of the “Brown Act causes of action” is an unappealable order.

 First, section 581d of the Code of Civil Procedure makes it abundantly clear that an order of dismissal, in order to be a final “judgment” subject to appeal, must be written, signed by the court and filed in the action.   No such written, signed and filed order appears in the record before us.   To be sure, the record on appeal contains a clerk's minute order and a “Notice of Ruling” prepared by the City's counsel, both of which refer to the trial court's dismissal of the Brown Act causes of action.   These, however, do not meet section 581d's plain and unambiguous requirement of a written, signed and filed order.¹

 Second, Dunes' appeal constitutes an effort to circumvent the “one final judgment” rule.   From the record before us, it would appear that there are still several causes of action which survive in Dunes' civil action against the City.   It is the law in California that piecemeal appeals, appeals from anything less than a final judgment that finally disposes of all disputed issues as between the parties to the appeal, will not lie.  (Tenhet v. Boswell (1976) 18 Cal.3d 150, 153, 133 Cal.Rptr. 10, 554 P.2d 330.)   There are, of course, certain limited exceptions to the broad rule, but none of them have any apparent application in this instance.  (See, generally, DeGrandchamp v. Texaco, Inc. (1979) 100 Cal.App.3d 424, 431–437, 160 Cal.Rptr. 899.)

The cross-appeal taken by Dunes is dismissed.²

II. THE VIOLATION OF THE “SEPARATION OF POWERS” DOCTRINE

 The adoption of a rezoning ordinance is a purely legislative act.  (Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 521–522, 169 Cal.Rptr. 904, 620 P.2d 565.)   Likewise, adopting and amending general plan provisions are purely legislative acts.  (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 118, 109 Cal.Rptr. 799, 514 P.2d 111;  Karlson v. City of Camarillo (1980) 100 Cal.App.3d 789, 799, 161 Cal.Rptr. 260.)   Thus, the trial court's judgment in this case runs directly afoul “of the well-established principle, rooted in the doctrine of separation of powers (Cal. Const., art. III, § 3), that the courts may not order the [legislative body] to enact or not to enact, or the [executive] to sign or not to sign, specific legislation․”  (Serrano v. Priest (1976) 18 Cal.3d 728, 751, 135 Cal.Rptr. 345, 557 P.2d 929;  footnote references omitted.)   The continued vitality of this principle was recently reaffirmed by our Supreme Court in Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 445–446, 261 Cal.Rptr. 574, 777 P.2d 610. ³

Dunes has argued forcefully that the decision of this court in deBottari v. City Council (1985) 171 Cal.App.3d 1204, 217 Cal.Rptr. 790 leaves the City with no “legislative discretion” to be exercised in this case and that, consequently, the trial court's judgment did not unlawfully usurp the City's legislative powers.   Dunes has misconstrued the deBottari holding.   In deBottari, the operative status quo was a situation in which there was consistency between the city's general plan and the zoning ordinance in question, as required by law.  (Gov.Code, § 65860, subd. (a).)  In deBottari, this court judicially “blocked” a referendum measure that would have created an inconsistency in violation of the law.   It is beyond purview that the courts can act to prohibit unlawful acts, and this court did nothing more than that in deBottari.   In this case, on the other hand, the operative status quo (upon the lawful adoption of the City's own general plan) was one in which there was a patent inconsistency between the general plan and the zoning classification in question.   In this instance, then, either a change in the zoning classification or a change in the general plan might result in the consistency required by the law.   Thus, there is ample opportunity here for the exercise of legislative discretion.⁴ 42.)

We do not wish to be understood as saying that a general plan can be made to conform to a zoning ordinance in order to achieve consistency between the two.   Quite the opposite is true.  (Gov.Code, § 65860, subd. (c).)  However, it is equally true that the law specifically contemplates amendments even as to the mandatory elements of a general plan as often as four times a year (and even more often in certain circumstances) to accommodate rapidly evolving and changing land-use needs.  (Gov.Code, § 65358, subd. (b).)  Thus, a city's general plan may well prove to be a “moving target” where the aim is consistency between that plan and various zoning ordinances.

CONCLUSION AND DISPOSITION

The judgment is reversed as having been entered in excess of the trial court's jurisdictional authority.   This matter is remanded to the trial court for further proceedings consistent with this opinion.   The trial court is hereby directed to vacate the writs heretofore issued by it in this matter.   Upon remand, should proof be made to the satisfaction of the trial court that there now exists consistency between a validly adopted general plan and a zoning classification applicable to Dunes' property, the trial court is hereby directed to forthwith dismiss all within causes of action and petitions for relief rendered moot by such consistency.

FOOTNOTES

1.  Indeed, Dunes' own actions in prosecuting its cross-appeal suggest that Dunes had an “inkling” that it was attempting to appeal that which was unappealable.   Dunes initially appealed from the trial court's ruling which was issued at the conclusion of the consolidated court hearing, clearly an unappealable order.   Dunes quickly amended its Notice of Appeal to state that the appeal was being taken from the June 1, 1988 judgment.   While this was an appealable final judgment, it had nothing to say about the Brown Act causes of action.

2.   In passing, we note that it is not at all clear from the record before us that the trial court acted in the manner alleged by Dunes to be error.   Dunes insists that the trial court erroneously dismissed the Brown Act causes of action from Dunes' civil action.   However, the transcript of the trial court's hearing and a reading of the clerk's minute order from that hearing suggest the possibility that the trial court dismissed only Dunes' petition for a writ of mandate concerning the alleged Brown Act violations, not the civil causes of action.

3.   Dunes professes to have difficulty in reconciling this constitutional principle of separatism with the decision rendered by this court in Fontana Unified School District v. City of Rialto (1985) 173 Cal.App.3d 725, 219 Cal.Rptr. 254.   We have no such difficulty.   In Fontana, there were no more legislative acts to be performed by the city (although there was a discretionary, administrative act, the fixing of a particular school facilities fee, as well as the ministerial act of imposing the fee, left to be performed).   In short, while the general rule is that mandamus will lie to compel the exercise of discretion in some manner or another (but not in any particular manner), mandamus will not lie to compel the exercise of legislative powers, even in the face of legislative inaction.  (Sklar v. Franchise Tax Board (1986) 185 Cal.App.3d 616, 624–625, 230 Cal.Rptr. 42.)

4.   Dunes also argues that there is no legislative discretion to be exercised because the City's planning commission has identified only one zoning classification that is consistent with the general plan.   Whether or not the planning commission is correct, the obvious flaw in Dunes' argument is that it unjustifiably assumes that the City cannot adopt a new and different zoning classification in order to achieve the legally mandated consistency.

HOLLENHORST, Acting Presiding Justice.

McDANIEL and DABNEY, JJ., concur.