SHELTER CREEK DEVELOPMENT CORPORATION v. CITY OF OXNARD (1982)

INTRODUCTION

Defendants City of Oxnard and City Council of Oxnard (hereinafter collectively referred to as Oxnard) appeal from a summary judgment entered in favor of plaintiffs Shelter Creek Development Corporation (hereinafter referred to as Shelter Creek) and Leo A. O'Hearn and Margaret O'Hearn (hereinafter together referred to as the O'Hearns) in this action for declaratory relief and a permanent injunction to prohibit enforcement by Oxnard of Ordinance No. 1805.¹

FACTS

On June 18, 1980 plaintiffs filed a complaint against Oxnard seeking a declaration that Ordinance No. 1805 was void, invalid, and unconstitutional generally and as applied to Shelter Creek's proposed stock cooperative conversion.   The complaint also sought preliminary and permanent injunctive relief to restrain Oxnard from enforcing Ordinance No. 1805.

The complaint alleges in substance the following:  That plaintiffs Leo O'Hearn and Margaret O'Hearn are the sole stockholders in plaintiff Shelter Creek Development Corporation;  that on August 15, 1978 Shelter Creek and O'Hearns executed a written agreement giving Shelter Creek the option to purchase the Shelter Creek Apartment Complex (hereinafter referred to as The Complex) then owned by O'Hearns;  that Shelter Creek's intention was and is to acquire The Complex in order to effect a conversion of The Complex to a stock cooperative;  that the purchase price agreed upon by Shelter Creek and O'Hearns was based on the ultimate value of The Complex as a stock cooperative;  that on August 18, 1978, Shelter Creek filed with the California Department of Real Estate (hereinafter referred to as DRE) an application for the conversion of The Complex to a stock cooperative subdivision;  and that the DRE on December 26, 1979, issued to Shelter Creek a final subdivision report which constituted the State's approval for sales to the public of units in the Shelter Creek stock cooperative conversion.

Attached to and incorporated in plaintiffs' complaint is a copy of Ordinance No. 1805, enacted by Oxnard on April 1, 1980, which sets forth the procedures and requirements of that city for conversion of apartments into condominiums and stock cooperatives.   Ordinance No. 1805 provides in pertinent part that no existing apartment unit shall be converted to a stock cooperative without a “special use permit;”  that in order to obtain a special use permit, “each dwelling unit shall be separately metered for gas, water, and electricity,” and that the proposed conversion shall substantially conform to the advisory standards for new condominium projects.²

Also attached to plaintiffs' complaint is a copy of Senate Bill No. 823, enacted on September 28, 1979, which provides in pertinent part that stock cooperative conversions are to be governed by the provisions of the California Subdivision Map Act (Gov.Code, § 66410 et seq.), and that all stock cooperative conversions where an application for a public report was filed with the DRE prior to July 1, 1979, are exempted from compliance with any local municipal regulations over stock cooperative conversions which were enacted after July 1, 1979.

On June 18, 1980, plaintiffs filed an application for a preliminary injunction to restrain Oxnard from enforcing the provisions of Ordinance No. 1805, which was supported by the declaration of Leo O'Hearn.³

On July 14, 1980, the trial court conducted a hearing on plaintiffs' application for preliminary injunction, and denied the injunction on the grounds that plaintiffs made no showing that they might suffer irreparable injury in the absence of interim injunctive relief.

On September 5, 1980, plaintiffs filed a motion for summary judgment which sought a determination that Ordinance No. 1805 was void, invalid and unconstitutional generally and as applied to Shelter Creek's proposed stock cooperative conversion.   Plaintiffs' summary judgment motion was made pursuant to a stipulation of facts entered into by plaintiffs and defendants.⁴

Oxnard filed an opposition to plaintiffs' motion for summary judgment supported by the declaration of K. D. Lyders, City Attorney.   In his declaration Lyders alleged, in pertinent part, that members of the Oxnard City Council asked Lyders whether Shelter Creek's proposed stock cooperative conversion was exempt from city regulation by reason of Senate Bill No. 823;  that it was Lyders' opinion that Senate Bill No. 823 “would provide exemption from any subdivision regulation but would not preclude zoning or other police power regulations;”  that in deliberating on the adoption of the ordinance the Council declined to provide an exemption for plaintiffs' project although they were specifically requested to do so;  and that in Lyders' opinion the Oxnard City Council specifically intended to include Shelter Creek's proposed stock cooperative conversion within the regulatory coverage of Ordinance No. 1805.⁵

The trial court denied Shelter Creek's initial motion for summary judgment, but declined to rule on the constitutional question because Oxnard had failed to brief that issue in its opposition.

On September 29, 1980, plaintiffs filed a motion for partial summary judgment which sought a determination that Ordinance No. 1805 unconstitutionally deprived plaintiffs of property without due process of law.   In opposition to plaintiffs' motion, defendants filed the declaration of Gene Hasford, Oxnard City Planning Director.   Hasford's declaration alleged in pertinent part that Ordinance No. 1805's parking requirements are justified by their deterrent effect on local crime, and that the ordinance's square footage requirement for each dwelling unit is justified by “fulfilling a minimum expectation of amenity and special requirements.”

Plaintiffs' motion was granted, the trial court finding the ordinance unconstitutional as applied.   Summary judgment was entered in favor of plaintiffs on December 8, 1980, and the court ordered Oxnard permanently enjoined from enforcing the ordinance with respect to the Shelter Creek development.⁶

ISSUES

Oxnard contends on appeal that (1) plaintiffs' motion for summary judgment was premature absent a showing that plaintiffs had exhausted their administrative remedies;  (2) there was as a matter of law no evidence that Ordinance No. 1805 was in fact applied to plaintiffs, and (3) assuming it was applied to plaintiffs, there was no showing that Ordinance No. 1805 was unconstitutional with respect to plaintiffs' stock cooperative conversion.

DISCUSSION

I

Defendants first contend that plaintiffs' motion for summary judgment was premature absent a showing that plaintiffs had exhausted their administrative remedies prior to filing suit for declaratory and injunctive relief.

 The general rule is that “[a] party aggrieved by the application of a statute or ordinance must invoke and exhaust the administrative remedies provided thereby before he may resort to the courts for relief.”  (Metcalf v. County of Los Angeles (1944) 24 Cal.2d 267, 269, 148 P.2d 645.)

 However, when the aggrieved party can positively state what the administrative agency's decision in his particular case would be, exhaustion of the administrative remedies is not required.  (Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 112 Cal.Rptr. 761.)

 In the instant case, the declaration of Oxnard City Attorney, K. D. Lyders, in support of defendants' opposition to plaintiffs' motion for summary judgment, alleges that in deliberating on the adoption of Ordinance No. 1805, the Oxnard City Council had been specifically requested to make an exception for plaintiffs' proposed conversion, and that the Council declined to make such exception.   In addition, O'Hearn in his declaration alleges that prior to the passage of Ordinance No. 1805, he participated in numerous Oxnard City Council meetings in which he requested that his proposed conversion be exempted from operation of Ordinance No. 1805, on the grounds that the physical standards imposed on stock cooperatives by the ordinance were impossible for O'Hearn to comply with.   The council has consistently denied O'Hearn's requests for exemption.   In light of these undisputed facts, it is clear that plaintiffs' pursuit of administrative remedies would have been futile and useless, and their failure to exhaust administrative remedies does not preclude them from prosecuting this action.⁷

II

 Defendants contend next that there is no evidence in the record that Ordinance No. 1805 was in fact ever applied to plaintiffs' conversion.   This contention is manifestly unfounded.   Ordinance No. 1805, a copy of which was attached to plaintiffs' complaint and motion for summary judgment, requires that each dwelling unit of the proposed conversion be separately metered for gas, water and electricity.   The ordinance also requires substantial compliance with the advisory standards for new condominium projects as set forth in Oxnard Resolution No. 7658.   Plaintiffs have repeatedly declared and admitted that their project complies with none of the foregoing requirements.   Defendants also concede this fact in their opposition to plaintiffs' motion for summary judgment.

Additionally, the final public report issued by the DRE on plaintiffs' proposed conversion, a copy of which was filed in the record, indicates specifically that plaintiffs' conversion does not satisfy the criteria of Ordinance No. 1805 with respect to the square footage of individual units and the total number of automobile storage spaces.

In sum, there is an abundance of evidence in the record supporting the trial court's conclusion that Oxnard's action constituted application of Ordinance No. 1805 to plaintiffs' attempted conversion.

III

Defendants finally contend that assuming Ordinance No. 1805 was applied to plaintiffs, there was no showing that the ordinance was unconstitutional with respect to plaintiffs' stock cooperative conversion.

 While great deference is accorded the governmental power to interfere with property rights in behalf of the health, safety and welfare of the public, it is well established that this power is not without limits.   A legislative body may not under the guise of police power, impose restrictions that are arbitrary or unreasonable on the use of private property or the pursuit of useful activities.  (McKay Jewelers, Inc. v. Bowron (1942) 19 Cal.2d 595, 122 P.2d 543.)

 Article I, section 7(a) of the California Constitution provides that “[a] person may not be deprived of life, liberty, or property without due process ․”  When the application of an ordinance purporting to regulate the use of property does not bear a real and substantial relation to the public health, safety, and welfare, due process is not satisfied.   (Wilkins v. City of San Bernardino (1946) 29 Cal.2d 332, 175 P.2d 542.)

 Ordinance No. 1805, purportedly enacted pursuant to Government Code section 65800 et seq. entitled “Zoning Regulations,” regulates the conversion of apartment complexes to stock cooperatives by requiring, inter alia, that persons wishing to effect a conversion obtain from the Oxnard City Council “a special use permit, and where applicable, an approved subdivision map.”   The ordinance sets forth certain mandatory physical standards which must be complied with an order to obtain a special use permit,⁸ and provides additionally that the proposed stock cooperative conversion “shall substantially conform to any advisory standards for the construction of new community housing projects, which standards have been adopted by the City Council and are in effect at the time of review.”

The advisory standards for the construction of new community housing projects are set forth in Oxnard Resolution No. 7658, adopted May 29, 1979.

It is conceded by plaintiffs and defendants that the Shelter Creek conversion does not comply and plaintiffs cannot make it comply with the requirements of Ordinance No. 1805.⁹  Furthermore, plaintiffs have consistently maintained that the standards for conversion, as established by the ordinance, are so unreasonable that it is impossible for plaintiffs to comply.   In Wilkins v. City of San Bernardino, supra, 29 Cal.2d 332, 338, 175 P.2d 542, the California Supreme Court stated that “[w]here it is claimed that the ordinance is unreasonable as applied to plaintiff's property ․ it is incumbent on plaintiff to produce sufficient evidence from which the court can make such findings as to the physical facts involved as will justify it in concluding, as a matter of law, that the ordinance is unreasonable and invalid.”

In the instant case, the record reveals that plaintiffs have met their burden of proof.   The requirements of Ordinance No. 1805 are so severe that drastic structural changes in the Shelter Creek Complex would have to be made in order to satisfy the ordinance.   For example, the DRE final subdivision report on plaintiffs' project indicates that the square footage of the units in The Complex varies from 504 to 1,000 square feet.   Ordinance No. 1805 requires a minimum of 1,000 square feet for all units.   Furthermore, the total number of automobile storage spaces in The Complex, as indicated by the final public report, is 241.   Ordinance No. 1805 requires one one-car garage for each one-bedroom or studio unit, and one two-car garage for each two-bedroom unit, as well as one visitor parking space per unit.   This would bring the total required parking spaces to 496, making The Complex deficient by 255 spaces.   Ordinance No. 1805 also requires that every unit contain at least two separate bedrooms.   Of The Complex's 216 units, almost three-quarters (152) are one-bedroom or studio apartments.

The purported justification for these requirements is alleged in the declaration of Oxnard Planning Director Gene Hasford.   According to Hasford, the parking requirements are justified by their deterrent effect on local crime;  the square footage requirement for dwelling units is justified by “fulfilling a minimum expectation of amenity and special requirements.”

While these objectives may certainly carry some validity when applied to a stock cooperative to be constructed, it is unclear how such objectives can be reached by an ordinance which makes rigid requirements on stock cooperatives, but places no similar requirements on existing apartment complexes.   The only distinction between an apartment complex and a stock cooperative is in the form of ownership.   In this respect, the parking and square footage provisions of Ordinance No. 1805 appear arbitrary, with no real and substantial relation to the health, safety, and welfare of the public.

Other provisions of Ordinance No. 1805 also seem unnecessary and unreasonable as applied to plaintiffs.   For instance, no rational explanation is given for Oxnard to require plaintiffs to “substantially conform” to advisory standards for the construction of new community housing projects, when such standards are “advisory” rather than mandatory for the developers of new community housing projects.

Similarly, no valid justification is presented for requiring plaintiffs to install meters for each dwelling unit, when the City of Oxnard will continue to send only one bill for each utility to the corporation that owns the cooperative.

Plaintiff Leo O'Hearn by declaration makes the uncontradicted allegation that from August 18, 1978 to the present plaintiffs have “continued to openly expend substantial effort, time, and money to effect a conversion of Shelter Creek” apartment complex.¹⁰  He further alleges that plaintiffs have expended “in excess of $232,000 in loan commitment, processing and legal fees in connection with the goal.”   He alleges, finally, that plaintiffs are prepared at present to begin sales of stock cooperative shares for the project.   The unduly harsh restrictions imposed by Ordinance No. 1805 however, will prevent them from doing so.

In sum, the record contains evidence sufficient to support a determination by the trial court that Ordinance No. 1805 is unconstitutional as applied to plaintiffs' project.   The ordinance is the functional equivalent of a blanket prohibition of plaintiffs' lawful use of their property.   Since no showing has been made that such prohibition is reasonably related to the health, safety, and welfare of the public, Ordinance No. 1805 was properly declared unconstitutional as applied to plaintiffs' attempted stock cooperative conversion.¹¹

DISPOSITION

The judgment of the trial court is affirmed.

I respectfully dissent.

By its decision, the majority is today serving notice on the developers of this state that if they take steps to begin a project in a locality where no zoning ordinance governs that particular endeavor, then they may be assured that the courts will prevent the local entity from exercising its police power to protect the citizens of the locality and consumers in general from whatever the developers might seek to accomplish.   In my opinion the majority not only does an injustice to the City of Oxnard by its decision, but more importantly, it disregards precedent and establishes what I consider to be a dangerous dichotomy of decision.

In their complaint the plaintiffs allege that certain ordinances of the defendant City of Oxnard, including Ordinance No. 1805, were “void, invalid, unenforceable and unconstitutional in their entirety.”   Plaintiffs allege that the ordinances deprive plaintiffs of life, liberty, and property without due process of law;  that they deny the plaintiffs equal protection of the laws;  and that they constitute a taking of the plaintiffs' property without payment of just compensation.   They make other allegations to the effect that the State Map Act preempted the field and that therefore the municipality was without power to legislate in this area.   Additionally, they allege that Ordinance No. 1805 is unconstitutional because it is vague, ambiguous, and overbroad.

Plaintiffs' efforts to enjoin enforcement of the ordinances were denied by the trial court.   Thereafter plaintiffs instituted a motion for summary judgment based upon certain facts which were stipulated to by counsel for the respective parties.   After that motion was argued orally and in writing, the trial judge denied it and made the following findings:  (1) Ordinance No. 1805 applies to the plaintiffs' project.  (2) The ordinance is not preempted by state law.  (3) Plaintiffs' project is not exempted by Senate Bill No. 823.   The court would not rule on the constitutionality of defendants' ordinance either on its face or as applied to plaintiffs' project because those issues are “outside the issues stipulated to by counsel ․”

The court's order in this regard was made on September 26, 1980.   Before notification of the court's order, however, plaintiffs filed a second motion designated as a motion for partial summary judgment, but actually moving for summary judgment.   In the renewed motion plaintiffs again assert that Ordinance No. 1805 does not apply to plaintiffs' conversion and that Ordinance No. 1805 and Resolution No. 7658 are unconstitutional.   All papers filed by the respective parties in support of and in opposition to that motion are devoted exclusively to the question of the facial constitutionality of the ordinance.   The issue of unconstitutionality of the ordinance as applied was neither raised nor argued.

Thereafter, the court, without ruling on facial constitutionality, held that Ordinance No. 1805 is unconstitutional as applied to the Shelter Creek apartment complex.

The majority, unconcerned by this changing of the rules after the last inning has been played, affirms the judgment.

It is appropriate to test the constitutionality of a statute by a complaint for declaratory relief as was done in this case.   It is quite inappropriate to challenge the application of an ordinance to a particular person or property by means of an action for declaratory relief.   Such review must be sought by mandamus under the provisions of section 1094.5 of the Code of Civil Procedure rather than by means of declaratory relief.  (State of California v. Superior Court (Veta) (1974) 12 Cal.3d 237, 251, 115 Cal.Rptr. 497, 524 P.2d 1281.)   This rule was reaffirmed in Agins v. City of Tiburon (1979) 24 Cal.3d 266, 273, 157 Cal.Rptr. 372.

The majority herein finds that the necessity of making an application for a special use permit was excused because plaintiffs' pursuit thereof would have been “futile and useless.”  (Majority opn., ante, at p. 135.)   For this proposition the majority relies on Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 112 Cal.Rptr. 761.   While the Ogo court stated a valid exception to the exhaustion of administrative remedies rule, it is clear that such exception has no application to the present case.

The facts in this case and those in Ogo are a chasm apart.   In Ogo the City of Torrance rezoned the land there in question from residential to light manufacturing for the specific purpose of preventing Ogo Associates from constructing the low-income apartment housing which Ogo contemplated.   The court stated, “The evidence is overwhelming that the city council rezoned the Victor Precinct area because appellants planned to build their project there;  it is inconceivable the city council would grant a variance for the very project whose prospective existence brought about the enactment of rezoning.”   (Ogo Associates v. City of Torrance, supra, 37 Cal.3d 830, 834, 112 Cal.Rptr. 761.)   The record before this court is barren of any evidence that the Oxnard City Council either specifically or incidentally enacted Ordinance No. 1805 for the purpose of preventing plaintiffs from converting their apartment house to a stock cooperative.   The implied finding of the majority to the contrary is without foundation and is altogether speculative.  (See Mountain View Chamber of Commerce v. City of Mountain View (1978) 77 Cal.App.3d 82, 92–93, 143 Cal.Rptr. 441.)

The majority predicates its finding that the rule requiring exhaustion of administrative remedies does apply to this case on the fact that the city council, in considering the adoption of Ordinance No. 1805, refused a request of plaintiffs to except from the ordinance the property owned by the plaintiffs.   Such a refusal by no means indicates that an application by plaintiffs for a special use permit would have been denied in whole or in part.   The mere fact that the defendant refused to exempt a particular project from an ordinance which is general in scope cannot logically be construed as a decision that a special use permit would not be granted.

The majority apparently concedes that a city has power under Government Code section 65800 et seq. to regulate conversions of existing occupied apartment housing into condominiums or other community-type housing.   Although Ordinance No. 1805 requires that a proposed conversion “shall substantially conform to any advisory standards for the construction of new community housing projects,” there is no evidence in the record that an applicant for a special use permit would be required to comply with such standards in every respect.   The evidence that plaintiffs' project does not comply in every detail with the standards imposed by Ordinance No. 1805 on stock cooperative conversions does not indicate which standards are not met, and there is no evidence indicating the extent of noncompliance.   Although the majority asserts on page 136, ante, of its opinion that defendant concedes plaintiffs cannot make their complex comply with the ordinance, I find no such concession in the record.   It is for the planning commission and the city council to determine in orderly proceedings after public hearings whether the deficiencies of plaintiffs' project should prevent the conversion of their apartment house to a condominium, stock cooperative, or other type of community housing complex.   Further, the discretion to make such determination has been vested by law in those municipal bodies, not in the trial court or in this court.   It is certainly a legislative function, or at least an exercise of administrative discretion, to determine what constitutes “substantial compliance”;  i.e., the advisory physical standards require that each unit in a proposed community housing project shall be at least 1,000 square feet.   While the record before the trial court indicates that not all of the units in plaintiffs' project contained 1,000 square feet, it does not indicate how many units are less than 1,000 square feet or how many feet are contained in those which are less than 1,000 square feet.   Similarly, the record does not disclose the particulars of the other deficiencies of physical standards which may or do exist.   Thus, there is no basis for either the trial court or the majority herein to reach the conclusion that application for a special use permit would be “futile.”

Both the Legislature and the courts have sanctioned zoning legislation which retroactively frustrates the hopes, desires, and expectations of developers of real estate ventures.  Government Code section 65858 provides for the enactment of interim ordinances “prohibiting any uses which may be in conflict with a contemplated zoning proposal which the legislative body ․ is considering or studying or intends to study within a reasonable time.”   Such interim ordinances were enacted by Oxnard prior to adoption of Ordinance No. 1805 and more than seven months prior to when plaintiffs obtained a subdivision map report.   The court said in Russian Hill Improvement Assn. v. Board of Permit Appeals (1967) 66 Cal.2d 34, 40, 56 Cal.Rptr. 672, 423 P.2d 824, “We have long held that one who is not yet armed with a presently effective municipal license to proceed with [his project] must assume the risk that, ‘before final action [has] been taken on [his] application’ [citation], the law might be changed so as to require that his application be denied.   [Citations.]”  After permitting the revocation of a permit to build, the court concluded, “Our ruling that a [building] permit is not ‘lawfully granted’ until the appropriate channels of administrative review have been exhausted enables cities to defer last-minute efforts to circumvent changes in the zoning laws.   More broadly, our interpretation ․ serves to prevent the proliferation of non-conforming structures.”  (Id., at p. 46, 56 Cal.Rptr. 672, 423 P.2d 824.)

It is thus apparent that the action of defendant in exercising its police power is in no respect reprehensible or in the slightest way unprecedented.   To the contrary, it is condoned and encouraged by the public policy of this state.

As indicated, the judgment below was prompted by a motion for summary judgment.   In ruling upon a motion for summary judgment, a court should be mindful of the basic rules to be applied.   The Supreme Court teaches in Walsh v. Walsh (1941) 18 Cal.2d 439, 441, 116 P.2d 62, “[I]ssue finding rather than issue determination is the pivot upon which the summary judgment law turns.  [Citation.]”  Further, “The procedure [summary judgment] is drastic and should be used with caution in order that it may not become a substitute for existing methods in the determination of issues of fact.  [Citation.]”  (Eagle Oil & Ref. Co. v. Prentice (1942) 19 Cal.2d 553, 556, 122 P.2d 264.)

It must be remembered that in the plaintiffs' pleadings and in the motion for summary judgment it was contended that Ordinance No. 1805 was facially unconstitutional.   There were no arguments made to the trial court that the ordinance was unconstitutional as applied.

As the majority recognizes, Wilkins v. City of San Bernardino (1946) 29 Cal.2d 332, 338, 175 P.2d 542, gives specific instructions as to what is necessary to establish that an ordinance is unconstitutional as applied.   “Where it is claimed that the ordinance is unreasonable as applied to plaintiff's property, or that a change in conditions has rendered application of the ordinance unreasonable, it is incumbent on plaintiff to produce sufficient evidence from which the court can make such findings as to the physical facts involved as will justify it in concluding, as a matter of law, that the ordinance is unreasonable and invalid.   It is not sufficient for him to show that it will be more profitable to him to make other use of his property, or that such other use will not cause injury to the public, but he must show an abuse of discretion on the part of the zoning authorities and that there has been an unreasonable and unwarranted exercise of the police power.   [Citation.]”  (Ibid.)

In considering the motion for summary judgment, the only undisputed facts before the trial court were those contained in the stipulation of the parties filed on September 2, 1980.   There are many issues of fact that need to be resolved before a decision can properly be made whether the ordinance is unconstitutional as applied.   Some of these issues are:  What is the size of each of the various units?   How many units are one bedroom and how many are two bedroom?   How are livable spaces allocated and separated?   How are the buildings specifically constructed?   Do private patios exist?   Are the common areas adequate?   Can any inadequacies in any respect be remedied?   How extensive would required alterations be?   The list could be greatly expanded, but the point is of course that the existence of only one triable issue of fact militates against summary judgment.

Moreover, the majority has considered matters which are not part of the stipulation and are not part of any declaration in support of or in opposition to the motion or incorporated therein.   Rather, the court seems to be taking into consideration matters which are subject to judicial notice, but without notifying the litigants of its doing so, and more importantly, without permitting any rebuttal thereof by the city.   The authorities are clear that on a motion for summary judgment a court may properly take judicial notice of matters so cognizable where they are adequately referred to and incorporated into the motion or the declarations in support thereof.  (Larsen v. Johnannes (1970) 7 Cal.App.3d 491, 496, 86 Cal.Rptr. 744.)   The converse is certainly true.   If the extraneous matter is neither incorporated into nor referred to in the motion or in the supporting or opposing documents or at the hearing, it may not be considered by the trial court, let alone by the appellate court.   For these reasons, I deem it improper for the majority to consider statements from plaintiffs' declaration in support of an injunction when such declaration was not incorporated into plaintiffs' motion for summary judgment.   Defendant was not notified of the majority's intention to do so and will not know of such intention until publication of the decision herein.   Evidence Code section 459, subdivision (c), provides that in taking judicial notice of a matter of substantial consequence to the determination of the controversy, a reviewing court must provide the parties a reasonable opportunity to be heard in regard thereto.   To my knowledge, the majority has failed to comply with this legislative injunction.   Thus, I believe that the statements regarding time spent and money expended are not properly considered.   Additionally, it is difficult to fathom the meaning of the phrase “expended ‘in excess of $232,000 in loan commitment, processing and legal fees ․’ ”  (Majority opn., ante, at p. 137.)   Such phrase is at least ambiguous.

The only pertinent evidence which was actually before the trial court consisted of the stipulation which included the following:  a general physical description of the property which was provided by plaintiffs to the Department of Real Estate in their notice of intention, questionnaire, and application for a public report;  the ordinance and resolution in question;  the status of the parties to the action;  the fact that the Department of Real Estate has issued a final subdivision report;  and the fact that Oxnard will not require plaintiffs to file a subdivision map because of the exemption of Senate Bill No. 823, a copy of which was before the court.

From these meager facts the majority finds that plaintiffs met the test of Wilkins v. City of San Bernardino, supra, 29 Cal.2d 332, 175 P.2d 542, and that they produced sufficient findings as to physical facts to justify the court in concluding as a matter of law that the ordinance is unreasonable and invalid and that there has been an unreasonable and unwarranted exercise of police power.   I can only conclude that the majority's determination to exalt the rights of property over the rights of people has blinded it to the law and facts of this case.

The majority characterizes Ordinance No. 1805 as “the functional equivalent of a blanket prohibition of plaintiffs' lawful use of their property.”  (Majority opn., ante, at p. 137.)   This indictment can be predicated only on inferences drawn from shadowy allusions made by plaintiffs, and it ignores the patent truth that plaintiffs' right lawfully to conduct their apartment house enterprise continues, and is in no way affected by Ordinance No. 1805.   It is only plaintiffs' desire to change their use of the property which is affected.   As was so cogently enunciated by Justice Richardson, “[A] zoning ordinance may be unconstitutional and subject to invalidation only when its effect is to deprive the landowner of substantially all reasonable use of his property.”   (Agins v. City of Tiburon, supra, 24 Cal.3d 266, 277, 157 Cal.Rptr. 372, emphasis supplied.)

The ability to rent 216 units certainly qualifies as a reasonable use of plaintiffs' property.

Finally, in footnote 11 (majority opn., ante, at p. 138) the majority states, “[I]t is apparent from the record that Ordinance No. 1805 was ostensibly enacted pursuant to Oxnard's zoning power in order to circumvent Senate Bill No. 823's ‘grandfather clause,’ ․”  I have searched the record and find not a scintilla of evidence to support such a gratuitous slur upon the character of the Oxnard officials who voted for the adoption of the ordinance.

The judgment should be reversed.

FOOTNOTES

1.   The attempted “cross-appeal” by plaintiffs from the trial court's minute order of September 26, 1980 denying a prior motion for summary judgment is dismissed.

2.   The advisory standards for new condominium projects are set forth in Oxnard Resolution No. 7658, adopted May 29, 1979.   Resolution No. 7658 requires, inter alia, that (1) housing units shall contain no fewer than two separate bedrooms;  (2) housing units shall be no smaller than 1,000 square feet;  (3) resident parking shall be provided at a ratio of two spaces in a garage per dwelling unit, such parking to be located no further than 50 feet from the unit served;  and that (4) visitor parking shall be provided at a ratio of one space per dwelling unit, such parking to be located no further than 100 feet from any unit.

3.   In his declaration O'Hearn alleged in pertinent part that “[c]ompliance with the ‘Mandatory’ and ‘Discretionary’ standards for conversions set forth in Ordinance No. 1805 and Resolution No. 7658 is next to impossible.   Furthermore, many of such standards are illogical when applied.   I do not understand, for example, why it is necessary that I install separate meters for gas, water, and electricity for each unit when the City has informed me that it will continue to send only one bill for each utility to the corporation that owns the cooperative.”O'Hearn in his declaration further alleged that “[t]he ‘discretionary’ physical standards requiring minimum unit size, minimum parking spaces and parking proximity are impossible for me to comply with.   In fact, I know of no apartment in the City of Oxnard that could be converted if compliance with either the ‘mandatory’ or ‘discretionary’ standards were required.   The Ordinance, in practical effect, constitutes a total cessation of conversion in Oxnard because existing apartments can not meet the physical standards.”

4.   The facts stipulated to by the parties were in substance that the Shelter Creek Development Corporation is a California corporation;  that Leo and Margaret O'Hearn are Shelter Creek's sole shareholders;  that the City of Oxnard is a municipal corporation;  that the Oxnard City Council is the authorized governing body of the City of Oxnard;  that on August 18, 1978, Shelter Creek filed an application with the DRE for the conversion of The Complex to a stock cooperative;  that on December 26, 1979, the DRE issued to Shelter Creek a final subdivision report on The Complex;  that on September 28, 1979, the State of California enacted Senate Bill 823, to become effective January 1, 1980;  that on May 29, 1979, Oxnard adopted Resolution No. 7658;  that on April 1, 1980, Oxnard passed Ordinance No. 1805, to become effective on May 1, 1980;  that Ordinance No. 1805 by its terms purports to apply to plaintiffs' conversion and requires that a special use permit and, where applicable, an approved subdivision map be obtained prior to conversion;  that Oxnard will not require the plaintiffs to file an approved subdivision map by reason of the exemption in Senate Bill No. 823.The parties filed concurrently with the stipulation of facts the following documents:  (1) a copy of Shelter Creek's application to the DRE for conversion of the Shelter Creek apartment complex to a stock cooperative;  (2) a copy of Oxnard Ordinance No. 1805;  (3) a copy of Oxnard Resolution No. 7658, and (4) a copy of Senate Bill No. 823.

5.   These allegations by the City Attorney stand in direct contradiction to the assertion in the dissenting opinion that “The record before this court is barren of any evidence that the Oxnard City Council either specifically or incidentally enacted Ordinance No. 1805 for the purpose of preventing plaintiffs from converting their apartment house to a stock cooperative.”  (Dissenting Opinion, p. 139.)

6.   Plaintiffs contend that the trial court's final judgment held Ordinance No. 1805 unconstitutional on its face and as applied to plaintiffs' project.   The judgment specifically states that Ordinance No. 1805 is “invalid, void and unconstitutional as applied to the Shelter Creek Apartment Complex.”   Furthermore, Oxnard was permanently enjoined from enforcing Ordinance No. 1805 only as against plaintiffs' project.   Clearly, the trial court found Ordinance No. 1805 unconstitutional solely as applied to plaintiffs' stock cooperative conversion.

7.   Only where, as in the case of the Coastal Commission permits, there are specific established procedures for review is it incumbent upon plaintiffs to utilize administrative mandamus rather than an action for declaratory relief.   Therefore the cases of State of California v. Superior Court (1974) 12 Cal.3d 237, 251, 115 Cal.Rptr. 497, 524 P.2d 1281 and Agins v. City of Tiburon (1979) 24 Cal.3d 266, 273, 157 Cal.Rptr. 372 cited by the dissent are inapposite.

8.   Of particular concern to plaintiffs is the mandatory physical requirement that “[e]ach dwelling unit shall be separately metered for gas, water, and electricity.”

9.   The dissent asserts that the evidence does not indicate which standards imposed by Ordinance No. 1805 are not met and that “there is no evidence indicating the extent of noncompliance.”   The plaintiffs in their motion for partial summary judgment make the following allegation:  “Ordinance No. 1805 requires that one wishing to convert meet prescribed mandatory and advisory physical standards.   The Advisory Standards appear in Resolution No. 7658 which was originally enacted to apply to ‘New Residential Condominiums' but has since been made applicable to stock cooperative conversions through Section 34–226(b) of Ordinance No. 1805.   The Resolution requires, inter alia, that (1) housing units shall contain not more than two separate bedrooms;  (2) a housing unit shall not be smaller than 1,000 square feet;  (3) parking shall be provided at a ratio of two spaces in a garage unit, such parking to be located no further than 50 feet from the unit served;  and (4) visitor parking shall be required at a ratio of one space per dwelling unit, such parking to be located no further than 100 feet from any unit.   The Ordinance requires that each dwelling unit be separately metered for gas, water and electricity.   Plaintiffs' project complies with none of the above standards.”The defendant in its papers in opposition to plaintiffs' motion for partial summary judgment accepts these facts:  “City accepts the facts as stated by plaintiffs, including the representation on pages 8–9 that plaintiffs' project does not comply with the City standards for stock cooperative and condominium conversions.”

10.   The dissent asserts that we have taken improper notice of certain documents in the record including the O'Hearn declaration filed in support of their original motion for summary judgment.   Court records are the proper subject of judicial notice under Evidence Code, section 452 subdivision (c) as “Official acts of the ․ judicial departments ․”  In addition, Evidence Code, section 452(d) provides for unlimited judicial notice of “Records of (1) any court of the state or (2) any court of record of the United States or of any state of the United States.”  (See e.g. People v. Maxwell (1978) 78 Cal.App.3d 124, 130, 144 Cal.Rptr. 95.)   The principles permitting judicial notice of court records apply with equal force to trial and to appellate courts.  (People v. Rojas (1962) 57 Cal.2d 676, 678, 21 Cal.Rptr. 564, 371 P.2d 300;  Colvig v. RKO General, Inc. (1965) 232 Cal.App.2d 56, 64, 42 Cal.Rptr. 473.)   See also Pratt v. Coast Trucking, Inc. (1964) 228 Cal.App.2d 139, 39 Cal.Rptr. 332 where the appellate court on its own motion properly took judicial notice of the files and order in a case decided by the Public Utilities Commission which was deemed of importance to the case before the court.“It is manifest that section 452, subdivision (d), by its terms authorizes taking judicial notice of records on file in the action before the trial court whether or not they are in evidence in the proceedings and whether or not the trial judge relied upon them.   This is, of course, not to say that the appellate court will take judicial notice of such documents or other matters if they have not been presented to the trial court;  as a general rule the court should not take such notice if, upon examination of the entire record, it appears that the matter has not been presented to and considered by the trial court in the first instance.”  (People v. Preslie (1977) 70 Cal.App.3d 486, 493, 138 Cal.Rptr. 828.)The records of which judicial notice has been taken in the case at bench are solely those in the superior court file and submitted to this court as part of the clerk's transcript on appeal.   These documents by necessary implication were considered by the trial court in ruling on the plaintiffs' second motion for summary judgment.   A fortiori, they constitute documents relevant to the determination of this appeal in the absence of objection to their use either here or in the court below.

11.   While Oxnard may validly regulate subdivision conversions by requiring that a use permit be obtained prior to conversion (Gov.Code, §§ 65800 et seq.;  Norsco Enterprises v. City of Fremont (1976) 54 Cal.App.3d 488, 126 Cal.Rptr. 659), it is apparent from the record that Ordinance No. 1805 was ostensibly enacted pursuant to Oxnard's zoning power in order to circumvent Senate Bill No. 823's “grandfather clause,” which states in pertinent part that no local regulation enacted pursuant to the Subdivision Map Act after July 1, 1979 “shall affect a stock cooperative conversion if the application for the conversion's public report, including payment of an appropriate fee, was made prior to July 1, 1979.”The Subdivision Map Act vests in local governments the authority to regulate by ordinance the “design and development of subdivisions.”   (Gov.Code, § 66411.)   A stock cooperative is a subdivision within the meaning of that term as used in the Map Act.  (Gov.Code, § 66424.)The effect of Ordinance No. 1805 is identical to that of an ordinance enacted pursuant to the Subdivision Map Act, because Ordinance No. 1805 regulates “the design and improvement of subdivisions.”   Had Oxnard labeled Ordinance No. 1805 a subdivision ordinance enacted pursuant to the Map Act, plaintiffs' attempted conversion would certainly have been exempted from the ordinance's operation by Senate Bill No. 823, since plaintiffs filed their application for a subdivision public report on August 18, 1978, and Ordinance No. 1805 was enacted on April 1, 1980.   Defendants, in fact, have stipulated that Oxnard will not require plaintiffs to file a subdivision map as required by the Subdivision Map Act, by reason of the exemption in Senate Bill No. 823.Since we affirm the trial court's final judgment, which held Ordinance No. 1805 unconstitutional as applied to plaintiffs, it is unnecessary to decide the question whether Oxnard may circumvent Senate Bill 823 by labeling its regulation a “zoning ordinance.”

L. THAXTON HANSON, Associate Justice.

LILLIE, Acting P. J., concurs.