CITY OF LOS ANGELES v. WILSEN DEVELOPMENT CONSTRUCTION CORP (1963)

Prohibition. Wilson Development & Construction Corp. and Los Feliz Towers Apartments, a partnership,¹ obtained from the superior court (in superior court case No. 821,539) an order for issuance of a peremptory writ of mandate directing the City of Los Angeles, its Board of Building and Safety Commissioners and J. C. Monning, as Superintendent of Building and General Manager of Department of Building and Safety, to grant forthwith to petitioners building permits for construction of two 13 story ‘high rise’ apartment houses in the Los Feliz area of Los Angeles. The issuance of that writ was stayed by the granting of an alternative writ of prohibition in the instant proceeding.

Prior to 1956, the Los Angeles City Charter prohibited the erection of any building higher than 13 stories. In that year the charter was amended upon referendum, the height limit removed and a density measure imposed requiring that no building could be erected exceeding a specified multiple of the net buildable area of the property in the particular zone. Thus the basic law stood at the time Wilsen and Towers acquired in June, 1961, property on the north side of Los Feliz Boulevard extending some 594 feet on the boulevard and situated between Hillhurst and Commonwealth Avenues, lying within building zone R–4–1; this they did for the purpose of erecting two high rise tower apartments thereon. They proceeded with leisurely speed to prepare at large cost architectural plans and to do other things necessary to the preparation and filing of an application for building permits in accordance with the existing ordinances. Such an application was filed with the Department of Building and Safety on May 21, 1963. Prior to filing the application for the permit the architects for the applicants met with the officials of the Department of Public Works and obtained their approval of all phases of the project which were within their jurisdiction. And there seems to be no dispute that there had been compliance in all respects with the requirements and ordinances of the City respecting the construction of buildings except for the resolution and ordinance of the City Council which will be discussed subsequently. The petition for mandate below says: ‘The plans, specifications and soil report were approved, and a building permit would have been granted in routine fashion on July 3, 1963, but for the resolution of the City Council referred to in paragraph 6 above, and the action of the Board, which action was in turn based solely on said Resolution’; and the record indicates that this averment was admitted. The resolution to which reference is made in the foregoing quotation was passed by the City Council on June 28, 1963.

After introductory recitals it says: ‘NOW, THEREFORE, BE IT RESOLVED that this Council does hereby declare that it intends to initiate a change of height district upon all R–4 zoned property lying on Los Feliz Boulevard and within a distance of 350 feet northerly and southerly thereof, between Riverside Drive and New Hampshire Avenue, from height districts 1 and 2 to height district 1L; immediately after the ordinance establishing the 1L height district becomes effective on July 25, 1963; and BE IT FURTHER RESOLVED that the Department of Building and Safety of the City of Los Angeles be ordered and directed to not issue any permits for the construction of any building in the aforesaid area contrary to this Resolution.’ (Emphasis added.) The property description includes the holding of Wilsen and Towers.

Los Angeles, a Charter City, has vested the City Council with its legislative power, the charter providing in that respect: Section 21: ‘All legislative power of the city except as herein otherwise provided is vested in the Council and shall be exercised by ordinance, subject to the power of veto or approval by the Mayor as herein set forth. Other action of the Council may be by order or resolution, upon motion.’ Of course, zoning falls within the area of municipal affairs and the exclusive control of its legislative body. (Dwyer v. City Council, 200 Cal. 505, 511–512, 253 P. 932; Hunter v. Adams, 180 Cal.App.2d 511, 518–519, 4 Cal.Rptr. 776; Lindell Co. v. Board of Permit Appeals, 23 Cal.2d 303, 310–311, 144 P.2d 4; Fletcher v. Porter, 203 Cal.App.2d 313, 324, 21 Cal.Rptr. 452; Brougher v. Board of Public Works, 205 Cal. 426, 438, 271 P. 487.) But the action of the Council on that subject is limited by § 97(2), which says: ‘No ordinance, order or resolution shall be adopted by the Council involving (i) the creation or change of any zones or districts for the purpose of regulating the use of land, density of population, the height, bulk, location or use of buildings or structures therein, or the size of yards, open spaces or setbacks adjacent to buildings or structures, or (ii) the establishment, change or repeal of regulations applying within any of said zones, districts, yards, open spaces, or setbacks, unless and until it shall have first been submitted to the City Planning Commission for report and recommendation concerning the following: (a) Its relation to and effect upon any portion of the master plan of the City or any plans being prepared by the Department of City Planning, and (b) Whether its adoption will be in conformity with public necessity, convenience, general welfare and good zoning practice.’

Although the subject had been before the Council and the Planning Commission on numerous occasions prior to June 28, 1963, the resolution was not submitted to the Planning Commission for its consideration and recommendation. Presumptively this omission would render it void. (Kissinger v. City of Los Angeles, 161 Cal.App.2d 454, 464–465, 327 P.2d 10; Schofield v. City of Los Angeles, 120 Cal.App. 240, 244–246, 7 P.2d 1076.) However, the background and the immediate setting of this resolution is important.

On October 24, 1962, Los Feliz Improvement Association, consisting of some 650 owners of property located within the Los Feliz area affected by the existing and proposed zoning, sought by letter to the City Council an amendment of the city's comprehensive zoning plan so as to limit the height of buildings in the Los Feliz area to six stories. This request was referred to the City Planning Commission for study and recommendation. That commission having recommended favorably upon the requested amendment the City Council on April 16, 1963, instructed the city attorney to prepare an ordinance establishing a six-story height limit upon all property in the city. Thereafter, the proposed ordinance was revised to apply only to property within Heights District No. 1 and as so revised was introduced in the City Council on May 10, 1963, as an ordinance establishing Height District No. 1–L. Said ordinance had been submitted to and approved by the Planning Commission. On May 23, 1963, after several public hearings, a second ordinance was introduced which would apply only to R–4 property. This second ordinance was submitted to but disapproved by the Planning Commission.

Wilsen and Towers had filed their application for building permits on May 21, 1963, and the Los Feliz Improvement Association made written protest on June 12, 1963, urging among other grounds the pending establishment of the new 1–L Height District. The first ordinance failed of adopted and the second one was adopted by the Council (presumably by a two-thirds vote per § 97 of the charter) on June 12, 1963, approved by the Mayor on June 21, 1963, and published on June 25, 1963 as Ordinance No. 124882, becoming effective on July 26, 1963. It provided, in part, that ‘Portions of Height District No. 1 which are also within an R4 zone, may be designated as being in an ‘L’ Limited Height District, and no building or structure in Height District No. 1–L shall exceed six stories or 75 feet in height.' (Emphasis added.) Said Ordinance No. 124882 amended portions of sections 12.04 and 12.21.1 of the Municipal Code and operated as an enabling ordinance creating in effect a fifth height limit, designated as ‘L’ limit height district. The effect of the ordinance was to create a new height limit zone only as to R–4–1 property. To subject any area to the new height limit another ordinance must be passed conforming to the requirements of Charter provision § 97(2). However, the council had definitely committed itself to a six-story height limit for buildings in the area wherein the Wilsen and Towers property is situated. After adoption of this ordinance No. 124882, but prior to actual passage of any provision placing the area in question within this newly created height limit, the City Council passed the resolution of June 28, 1963, declaring its intention of placing part of the Los Feliz area, including the parcel on which Wilsen and Towers intended to construct their high rise apartments, within this newly established R–4–1–L zone, and directing the Department of Building and Safety not to issue any permits in the area contrary to the resolution.

As previously stated, ordinance No. 124882 had been submitted to the Planning Commission and disapproved by it, whereupon the Council adopted the ordinance by a two-thirds vote as authorized by § 97(2)(b) of the charter. Thus the purpose of subdivision (2) of § 97 had been subserved. Kissinger v. City of Los Angeles, supra, 161 Cal.App.2d 454, 465, 327 P.2d 10, 18, says: ‘The report which the planning commission is required to make to the council is a report based upon an investigation and a hearing and it is to be assumed that the council will give due consideration to the facts submitted to it by the planning commission in its report before adopting an ordinance against the recommendation of the commission.’ Schofield v. City of Los Angeles, supra, 120 Cal.App. 240, 245, 7 P.2d 1076, 1078: ‘It is manifest it was the legislative intent in the drafting of the charter provisions under consideration to provide for a city planning commission in fact as well as in name, and not to allow any zone ordinance to be passed until the proposed ordinance was submitted to the commissioners, whose duty required the making of recommendation as to whether the particular ordinance submitted to them should or should not be passed. These commissioners were, no doubt, selected because they were though to be peculiarly familiar with the matter of zoning, and there is a substantial reason for its requirement that the ordinance shall be submitted to them, and not that merely the subject-matter of the ordinance should be submitted to them.’ Essentially § 97 provides for an ‘incubation period’ mentioned in Miller v. Board of Public Works, infra, 195 Cal. 477, 496, 234 P. 381, 38 A.L.R. 1479. There appears to be no occasion to resort to undue legalism in order to exalt the resolution of June 28 above its proper status—that of a mere aid or means of creating and effectuating the ‘incubation period’ already recognized by the Supreme Court decisions cited infra.

On July 3, 1963, the Board of Building and Safety Commissioners directed the superintendent not to issue the permit because of the City Council's resolution of June 28, 1963 and at all times from and after July 3 the desired permit was refused.

On July 26, 1963, a resolution was introduced in the City Council containing the following: ‘Now, Therefore, Be It Resolved that this Council does hereby initiate a change of height district upon all R–4 zoned property lying on Los Feliz Boulevard or within a distance of 350 feet northerly or southerly thereof, between Riverside Drive and New Hampshire Avenue, extended, from Height Districts 1 and 2 to Height District 1L; and

‘Be It Further Resolved that this matter be immediately transmitted to the Planning Department of the City of Los Angeles for the proper hearings and other procedures necessary to implement this resolution.’

Upon recommendation of the Council's Planning Committee a resolution was adopted by the Council on August 6, 1963, containing the language first quoted from the resolution of July 26th.

It is apparent that the matter of rezoning of the area in which petitioners' property is situated was a matter of public notoriety at and before the time of filing of Wilsen and Towers' application for building permits, and that they sought to acquire vested rights under existing law although same was known to be in the process of change. The authorities are to the effect that this cannot be accomplished.

Miller v. Board of Public Works, supra, 195 Cal. 477, 496, 234 P. 381, 388 A.L.R. 1479): ‘It is a matter of common knowledge that a zoning plan of the extent contemplated in the instant case cannot be made in a day; therefore we may take judicial notice of the fact that it will take much time to work out the details of such a plan and that obviously it would be destructive of the plan if, during the period of its incubation, parties seeking to evade the operation thereof should be permitted to enter upon a course of construction which might progress so far as to defeat in whole or in part the ultimate execution of the plan.’

Brougher v. Board of Public Works, supra, 205 Cal. 426, 434–435, 271 P. 487, 490: “As a general rule a permit or license is revocable, except where the licensee had done something under the license from which the mere privilege would ripen into a vested right. This exception, it may be noted, does not apply where the act which operates as a revocation lies within the police power of the state.' If a permit already issued may be revoked upon the subsequent amendment of the ordinance under which it was issued, undoubtedly an application for a permit may be denied upon the amendment of the ordinance after the filing of such application, making it illegal to issue such a permit. The exception noted in the foregoing authorities, that a permit would not be revoked in those cases where the licensee ‘had done something under the license from which the mere privilege would ripen into a vested right,’ does not exist in those cases like the one before us, where no permit has ever been issued. In such cases there is no opportunity for any privilege to ripen into a vested right, for the reason that no privilege, in the sense used in the authorities cited, is acquired until a permit has been issued. * * * But as we have already seen, the board of supervisors, before the board of public works had acted upon said application, enacted, or attempted to enact, Ordinance No. 7519 (New Series), which, if valid, made it illegal for petitioners to erect a ten-story building upon their said real property. These facts bring the case clearly within the principles enunciated in the authorities above cited, and justified the board of public works in denying petitioners' application for a permit, provided Ordinance No. 7519 (New Series) is a valid ordinance of said municipality. It follows, therefore, from what we have said, that the petitioners were not entitled to have granted to them the permit applied for by merely showing that they had complied with all the laws and ordinances effective in said municipality at the time of the filing of the application with said board of public works when the further fact appeared that before final action had been taken on their application the ordinances under which said application had been made had been amended by the board of supervisors.'

In Lima v. Woodruff, 107 Cal.App. 285, 290 P. 480, after discussion of issuance of a building permit, but before any written application had been made, an emergency ordinance was passed directing the building inspector not to issue any building permit for any structure not conforming to the provisions of a certain preliminary zoning ordinance, adoption of which had been recommended to the City Council by the Planning Commission. The court said, at page 286 of 107 Cal.App., at page 480 of 290 P.: ‘The method of adopting comprehensive zoning ordinances involving, as it necessarily does, a lengthy study by the planning commission, and public hearings before the city council after a tentative ordinance has been recommended to the council by the plainning commission, makes it imperative, if the ultimate plan adopted is not to be largely defeated by property owners constructing non conforming buildings during what the Supreme Court in the Miller Case calls the incubation period, that some preliminary ordinance should be adopted to maintain the status quo until the details of the zoning ordinance can be worked out and such ordinance finally adopted.’

Hunter v. Adams, 180 Cal.App.2d 511, 520, 4 Cal.Rptr. 776, 782: ‘The implementation of the legitimate purpose of the act by the enactment of reasonable local legislation not in conflict with the act would likewise be proper. It is claimed by appellants that the ‘freezing of permits' is unreasonable because there is no assurance that the redevelopment plan will ultimately be adopted—that the steps thus far taken are merely in the ‘study’ and ‘planning stage.’ An integral part of community redevelopment programs is that entailed in planning and study. Without such preliminary studies, planning, analyses, and appraisals, a balanced, integrated plan could never be developed. The act contemplates a redesigning of areas, changes in zoning regulations, new street patterns, parks, and shopping centers. The particular uses to be made of the land, the participation in the plan by the present owners of property in the area, the appraised value of parcels to be taken—all these, and many more considerations, enter into the fruition of the ultimate plan. As said in Berman v. Parker, supra, 348 U.S. 26, 35, 75 S.Ct. 98, 104, [99 L.Ed. 27] ‘community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis—lot by lot, building by building.’ It is difficult for us to conceive how an intelligent integrated plan can be formulated if, while it is under study and planning, the area is in a constant state of flux with new building construction and improvements and the resulting change in property values and appraisals. It seems to us that the intelligent approach is that adopted by the council in the form of the resolution adopted here. Its object was to keep the status quo for a little over one year. Such an objective is a reasonable one in view of the legitimate objects of the over-all program.'

See also, Wheat v. Barrett, 210 Cal. 193, 197, 290 P. 1033; Chas. L. Harney, Inc. v. Board of Permit Appeals, 195 Cal.App.2d 442, 446–448, 15 Cal.Rptr. 870; City & County of San Francisco v. Superior Court, 53 Cal.2d 236, 245, 1 Cal.Rptr. 158, 347 P.2d 294.

Wilsen and Towers rely upon Munns v. Stenman, 152 Cal.App.2d 543, 314 P.2d 67, decided by this court, but it does not support their position. We said at page 551 of that opinion [152 Cal.App.2d page 551, 314 P.2d page 73]: ‘While it is generally true that such an application, must conform to an ordinance passed while action upon the same is pending (Brougher v. Board of Public Works, 205 Cal. 426, 271 P. 487), that rule seems not applicable to a situation in which the permit clearly should have been issued before amendment to the law.’ The case at bar falls within the Brougher doctrine (recognized in Munns as correct) rather than the exception stated in Munns; the application for permits was made in the instant situation a substantial period of time after the six-story height limit was under official discussion, and any moneys paid out and property deeded to the city by Wilsen and Towers were parted with while the proposal for high rise apartments in the area was being fought by the neighbors. The case of McCombs v. Larson, 176 Cal.App.2d 105, 1 Cal.Rptr. 140 is likewise plainly distinguishable upon its facts.

In our opinion the Brougher line of decisions require that the resolution of June 28, 1963, be relegated to its correct status of a mere aid to furtherance of the plan reflected in the previously passed ordinance No. 124882 and to require a holding that the pendency of the change in the zoning law and the public controversy concerning it warranted the Board of Building and Safety Commissioners and their building superintendent in withholding the permit regardless of any instruction from the City Council given after the passage of ordinance No. 124882.

We conclude that the ordering of a writ of mandamus to compel the issuance of a building permit to Wilsen and Towers was an interference with the exercise of discretion residing in municipal officials and hence an excess of jurisdiction on the part of the superior court (City & County of San Francisco v. Superior Court, supra, 53 Cal.2d 236, 243–244, 1 Cal.Rptr. 158, 347 P.2d 294), and that petitioners herein are entitled to a peremptory writ of prohibition.

Let a peremptory writ of prohibition issue as prayed.

FOOTNOTES

1.  For convenience herein referred to as Wilsen and Towers.

ASHBURN, Justice.

FOX, P. J., and HERNDON, J., concur.