JOHNSTON v. CITY OF CLAREMONT (1957)

The facts in this case, about which there is very little controversy, are as follows:

The City of Claremont is a municipal corporation of the sixth class, organized and existing under the general laws of the State of California.

In 1951 the city council of Claremont adopted a comprehensive general zoning plan, Ordinance No. 441. Portions of the city were restricted to single family dwellings and for agricultural use, denominated in zoning parlance as zone R–1. Business was permitted in other parts of the city, denominated zone C–2. Other zones and restrictions were set up by the ordinance, not necessary to be here mentioned.

Plaintiffs own property fronting on Foothill Boulevard. This boulevard is also called U. S. Highway No. 66. It is one of the main east-west highways from Los Angeles to the desert and all eastern states.

This highway carries an ever-increasing volume of motor driven traffic, with an ever-increasing dissemination of noxious gases, and an ever-increasing volume of noise.

The south line of Foothill Boulevard is the boundary between the City of Claremont and the County of Los Angeles. It is Claremont's boundary on the north.

Plaintiffs' property had been farmed to citrus for many years. Due to poisonous gases from traffic on the highway the citrus trees became so unproductive that the orchard would not pay taxes on the land or the cost of tilling the soil and caring for the trees.

And with the noise and the obnoxious fumes day and night it is difficult to sell for residential purposes any part of plaintiffs' property fronting on the highway.

In 1954, under the provisions of Ordinance No. 441, plaintiffs filed a request with the city council for a zoning change from residential to general commercial of their frontage on Foothill Boulevard, R–1 to C–2. The property requested re-zoned was 959 feet in length, on the boulevard, and 300 feet in depth.

Plaintiffs proposed to establish there a general sales agency for a popular make of automobile. They have a franchise from the manufacturer for this business in the City of Claremont, and they have maintained their agency in the area in the city zoned for business. But that location was under lease, and was inadequate and unsuited to their growing needs.

As required by the general zoning ordinance, the planning commission of the City of Claremont held a hearing upon this request, but referred it back to the city council without recommending approval or rejection.

The council then adopted Ordinance No. 503, rezoning plaintiffs' boulevard frontage as requested.

About a week later the council adopted an urgency measure, Ordinance No. 504, repealing Ordinance No. 503.

Then the council amended the general zoning law so that a hearing was required by both the planning commission and the council before any re-zoning application could be considered.

After this amendment to the general zoning law, plaintiffs filed another application to re-zone their boulevard property. The planning commission failed to act upon this application. This resulted in its automatic approval by that body under the provisions of the general ordinance. The city council then held a public hearing and again granted plaintiffs' application to rezone their property as commercial. This was done by Ordinance No. 513.

At the same time plaintiffs granted to the city by deed a twenty-foot easement over the most easterly part of their boulevard frontage, for the widening of a northsouth city street, Mountain Avenue, located there. This deed provided for defeasance of the grant should Ordinance No. 513 be repealed, or suspended, or for any reason not take effect according to its terms.

Then referendum petitions as to Ordinance No. 513 were filed with the city clerk.

Plaintiffs protested to the city council that referendum could not be invoked against Ordinance No. 513; but the council went ahead any way with the election provided for by the referendum law.

At the election 1153 votes were cast for the ordinance, and the same number of votes were cast against it. When the absentee ballots were counted the ordinance was defeated by 24 votes.

Plaintiffs then filed their complaint in this action against the city and its officers for declaratory and injunctive relief.

Four causes of action were pleaded:

1. That Ordinance 503 ws not effectively repealed. Therefore it is still in full force and effect. And that in any event this ordinance was validated by the curative acts of 1951 (Stats.1951, p. 3895, Chap. 1690, § 14) and of 1953 (Stats.1953, p. 2913, Chap. 1355, § 4).

2. That Ordinance No. 513 is also in full force and effect, because referendum does not apply to this change in the general zoning ordinance of the city.

3. That the easement granted to the city for Mountain Avenue is presently valid and subsisting.

4. That zoning of plaintiffs' boulevard property for residential and agricultural use in the general zoning law, Ordinance No. 441, is unreasonable, oppressive, arbitrary, and discriminatory, in the light of all the conditions surrounding and affecting the property: namely, (a) highway traffic conditions; (b) county zoning for business across the boulevard and on plaintiffs' side of the boulevard westwardly; (c) that 37% of all the frontage on Foothill Boulevard as it passes along the north boundary of Claremont is now zoned for business anyway; (d) a reservoir and pumping plant has adjoined plaintiffs' property for many years, and before the incorporation of the city; (e) commercial zoning of two of the three north-south highways in Claremont intersecting Foothill Boulevard; and (f) growth of the city resulting in an artificial monpoly of those who own property zoned for business within the city limits.

After a lengthy trial the Superior Court found as follows:

1. That the highway conditions were as alleged in plaintiffs' complaint, and that such conditions rendered plaintiffs' boulevard frontage more reasonably usable and suitable for commercial purposes, and unsuitable and unusable for residential or agricultural purposes. That substantially all of the property in the county contiguous to and for some distance east and west along Foothill Boulevard was and has been zoned for business, with a reservoir, water well, and pumping plant next to plaintiffs' property used for commercial purposes for many years.

But the court found that Ordinance No. 503 was invalid, because it was not adopted in conformity with the requirements of state law then in effect. The Government Code required that the legislative body hold at least one public hearing before adopting a change in a zoning ordinance, and that notice of the time and place of such hearing be published in a newspaper of general circulation. Concededly this was not done.

The court also found that the curative acts that plaintiffs asserted gave the ordinance validity did not apply in the circumstances in this case.

2. That Ordinance 513 complied in all respects with the requirements of the general zoning law of the city and with state law; that it was not subject to referendum under the laws of the State of California; and that it is now a valid and subsisting part of the general zoning plan of the City of Claremont.

3. As a necessary corollary of the foregoing finding, the court then found that plaintiffs' deed to the city was and is a valid and subsisting grant.

4. Finally the court found that the general zoning law, Ordinance No. 441, as amended by Ordinance No. 513, was not discriminatory as to plaintiffs.

Defendant city appeals from the judgment and the whole thereof; plaintiffs appeal from that part of the judgment that Ordinance 503 was invalid, and also from that part of the judgment that the general zoning law was not discriminatory.

These grounds of appeal will be commented upon in the order in which the pleadings and findings have been stated.

1. Referring first to Ordinance 503.

As already stated, this ordinance was not adopted in conformity with the state law. No hearing was had, and no notice was published, as required by our Government Code. (See sections 65804, 65803 and 65654, Gov.Code.) Therefore, Ordinance No. 503 is invalid.

So far as curative laws are concerned, this court adopts the reasoning of the trial judge, found in a well considered memorandum of opinion in the files:

‘The plaintiffs contend that even though Ordinance No. 503 did not comply with the requirements of state law, the curative acts of 1951 and 1953 (citing statutes) respectively had a validating effect. With this contention the Court cannot agree. To adopt such a construction would of necessity imply that the state law was inoperative upon all cities which had previously enacted ordinances contrary to the provisions of the state law and would give to a validating act a prospective operation instead of the retroactive effect intended. General laws would then not have uniform application throughout the state. Sec. 11 of Art. I of Constitution. The state legislature determined as a matter of public policy that before the enactment of an ordinance which changed the permitted use of property within a city there should be a hearing before the local legislative body. It would, in this Court's opinion, be a perversion of the law to hold that this provision did not apply to the City of Claremont but did apply to other general law cities within the state.’

2. Was Ordinance 513 nullified by referendum?

This is the most important question in this case. For it squarely poses the problem whether or not the referendum may be invoked to veto any change in a general zoning law made by the city council of a sixty class city.

The briefs of both parties to this appeal refer time and again to two California cases that touch upon this problem: Dwyer v. City Council, 1927, 200 Cal. 505, 253 P. 932; and Hurst v. City of Burlingame, 1929, 207 Cal. 134, 277 P. 308.

In Dwyer v. City Council, supra, our Supreme Court held that under the broad language in the charter of the City of Berkeley amendments to the general zoning law of that city were not excluded from the initiative and referendum.

In Hurst v. Burlingame, supra, the court was called upon to determine the validity of a general zoning law adopted by the electorate of a sixth class city under the initiative laws of this state.

In an unanimous opinion written by Mr. Justice Shenk, the Court said that our initiative and zoning laws are hopelessly inconsistent and in conflict as to the manner of preparation and adoption of zoning laws. The Court then held that in a general law city a zoning law may not be enacted by initiative.

In support of this decision, and in view of the Dwyer case, the Court said, 207 Cal. at page 138, 277 P. at page 310:

‘The city of Burlingame is a city of the sixth class organized and existing under and by virtue of the provisions of the General Municipal Corporations Act. [Citing statutes.] As such the city is limited in the exercise of its powers by the Constitution and general laws. It has only the powers expressly conferred and such as are necessarily incident to those expressly granted or essential to the declared objects and purposes of the municipal corporation. Its powers are strictly construed, and any fair, reasonable doubt concerning the exercise of a power is resolved against the corporation. * * * A zoning ordinance falls within the classification of police measures. [Citing cases.] But an ordinance adopted by a city organized under general law is subject to and controlled by general law. [Citing authorities.] The Zoning Act of 1917 is a general law of the state and the method prescribed by that law for the enactment of a zoning ordinance is binding on the city of Burlingame.’

Evidently in the Hurst case our Supreme Court had given some thought as to whether or not zoning laws in a sixth class city were subject to referendum. For in that case we find the following interesting dictum, 207 Cal. at page 142, 277 P. at page 312: ‘The question of the operation of the initiative law to such local legislation was not involved in the Dwyer case, and therefore no necessity arose to distinguish between the effectiveness of the initiative and the referendum in zoning cases. If the point were involved, it would undoubtedly be conceded that, had the board of trustees of the city of Burlingame adopted a zoning ordinance, as provided by the statute, its final action would be subject to the referendum provisions of the Constitution and laws of the state, for the obvious reason that there is embodied in the enactment of a zoning ordinance such elements of legislative action as to subject the ordinance when adopted to the reserved legislative power of the electors of the city, when properly invoked, to approve or reject it.’

Assuming that legislation establishing a basic zoning plan for a general law city is subject to referendum, Dwyer v. City Council of Berkeley, supra; and Hurst v. City of Burlingame, supra, this court has come to the conclusion that the action of the Claremont city council changing the property here in question from one zone to another was administrative and not legislative in character, and therefore was not subject to referendum.

No hard and fast rule can or should be laid down to determine whether a change in a zoning law is legislative or administrative. If a material change is made in a basic zoning law affecting all of the property within the city we may have a legislative act. If parcels of property are transferred from one zone to another, in a fair application to individuals of a general zoning law, then such transfers are administrative and not legislative in character.

And any review by the courts of zoning changes must be governed by the facts in each particular case.

So we come then to a consideration of the facts in this particular case.

The property here in question is a small fraction of the City of Claremont. It had lost the greater part of its value for residential or for agricultural use. While hardship often follows the exercise of the police power, and may not always defeat it, there can be no doubt where the justice in this case lies, as between the City of Claremont and the owners of this small boulevard frontage.

The city council, in its administrative capacity, recognized the equities in this situation, and did the right thing. And their action was in consonance with the true spirit of all the law bearing upon this interesting situation.

The test here applied was approved in the recent case of Essick v. City of Los Angeles, 34 Cal.2d 614, 213 P.2d 492. In that case referendum was denied when the city council granted conditional use permits for cemetery purposes under a comprehensive zoning plan.

Many other administrative measures of municipalities have been held not subject to the initiative and referendum laws of this state, i.e., selecting a courthouse site, Simpson v. Hite, 36 Cal.2d 125, 222 P.2d 225; street improvement proceedings, Chase v. Kalber, 28 Cal.App. 561, 153 P. 397; street opening proceedings, Starbuck v. City of Fullerton, 34 Cal.App. 683, 168 P. 583; off-street parking projects, Alexander v. Mitchell, 119 Cal.App.2d 816, 260 P.2d 261; and revocation of variances for parking, Saks & Co. v. City of Beverly Hills, 107 Cal.App.2d 260, 237 P.2d 32.

Therefore, in this case the referendum was not operative, and Ordinance No. 513 is now in full force and effect.

3. It necessarily follows then that plaintiffs' deed to the city is a valid and subsisting grant, according to its terms, of the easement described.

4. Now we come to the final ground of appeal, that the general zoning law, Ordinance No. 441, without the aid of Ordinance No. 513, is an arbitrary exercise of power by the city and is void constitutionally in that it deprives plaintiffs of their property without due process of law.

There are at least two complete answers to this contention.

First, it is obvious that Ordinance No. 441, as amended by Ordinance No. 513, gives to plaintiffs all that they ask for. The two ordinances must be read together to determine the city's law that measures plaintiff's rights. So read together no justiciable controversy that calls for declaratory relief is presented.

Secondly, our courts will not interfere with a city's power to zone, or to administer its plan of zoning, unless the exercise of that power transcends constitutional limitations. If there is a reasonable basis for the action of zoning authorities, even though that basis may be debatable, their action will not be disturbed by the courts. Lockard v. City of Los Angeles, 33 Cal.2d 453, 461, 202 P.2d 38, 7 A.L.R.2d 990.

Therefore, the general zoning ordinance, No. 441, of the City of Claremont, as amended by Ordinance No. 513, is not arbitrary, oppressive, discriminatory, unconstitutional, or void.

For the foregoing reasons, the judgment is affirmed. Plaintiffs to recover costs on appeal.

DRAPEAU, Justice pro tem.

WHITE, P. J., and DORAN, J., concur.