Opinion
Page __
__ Cal.App.2d __ 286 P.2d 819 Ray A. BAILEY et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents. Civ. 20938. California Court of Appeals, Second District, First Division Aug. 15, 1955Rehearing Denied Sept. 12, 1955.
Hearing Granted Oct. 13, 1955.
Opinion vacated 293 P.2d 449.
[286 P.2d 820] Holbrook, Tarr, Carter & O'Neill, W. Sumner Holbrook, Jr., Francis H. O'Neill, Los Angeles, for appellants.
Harold W. Kennedy, County Counsel, Edward H. Gaylord, Deputy County Counsel, Los Angeles, for respondents.
DORAN, Justice.
The appeal herein is from an order vacating a temporary restraining order, denying preliminary injunction, and discharging an order to show cause in an action brought to declare invalid amendment to a Los Angeles County Zoning Ordinance.
The facts are not in dispute. As stated in appellant's brief, 'Los Angeles County officials decided prior to July, 1954, to utilize Rancho Los Amigos land for a juvenile detention facility. The land in question was zoned R-1 (single family residence use) as was the surrounding property. This surrounding property was completely developed with a single family (R-1) residential type of development except for two areas immediately adjacent to the proposed juvenile hall. These two areas were owned by the Old River School and Downey Union High School Districts, both of which were then constructing thereon substantial buildings for use respectively as an elementary and junior high school'. (Appellants' italics.)
When the county began to consider the choosing of an appropriate site, states respondents' brief, 'it was found that the only territory under the Zoning Ordinance where a Juvenile Hall was permitted as of course was in territory so zoned as to permit heavy manufacturing, hog ranches, and other obnoxious uses, locations which were obviously unsuited. In order to place the Juvenile Hall in an appropriate location, it was necessary, therefore, that the county obtain for itself an exception or that the Zoning Ordinance be amended. * * * We concede that at the site chosen it would have been difficult to make the showing required for an exception * * *'.
On July 16, 1954, the Regional Planning Commission, a county department, published a notice of a public hearing to be held on July 27, 1954, 'relative to recommending to the Board of Supervisors for hearing and adoption of certain amendments to Ordinance No. 1494 (Zoning Ordinance) which * * * will permit the use of property in any zone for governmental purposes if a permit has first been obtained as provided in Article 1 of Chapter 5 of said Ordinance No. 1494'.
At the advertised hearing on July 27, 1954, the opposition of various local civic organizations in the Downey area was made known to the Commission, and several persons spoke concerning the matter. According to the affidavit of Roland A. Bargeman, Mr. John L. Commons, Assistant Director of Planning, stated that 'they were not then considering or would they consider, and no testimony would be received by the Commission concerning the desirability of the changes so far as the same might affect, or be related to in any way, a juvenile hall location'. It is to be noted that the [286 P.2d 821] zoning amendment then proposed, made no mention of juvenile hall facilities.
On August 18, 1954, the Planning Commission advised the Board of Supervisors that the 'proposed amendments' had been approved. In support of this recommendation the following documents were transmitted to the Board: (1) copies of the 'proposed amendments'; (2) 'Notice of Public Hearing'; and (3) a list of persons who testified before the Planning Commission. No findings or summary were included, although Section 65653 of the Government Code requires that the approved amendment 'shall be accompanied by a report of findings, summaries of hearings'.
On August 24, 1954, the Board of Supervisors ordered a public hearing to be held at 10:00 a. m. on September 23, 1954, and notice thereof was duly published. At this meeting, according to the record, 'Various communications protesting the proposed amendments are presented; and the Board is addressed by John B. Kingsley of the Los Angeles County Grand Jury, William B. McKesson, Presiding Judge of the Juvenile Court, Roy C. Seeley of the Los Angeles Realty Board, Leland M. Ford, and Francis O'Neill. * * * it is ordered that the Chief Administrative Officer * * * meet immediately with the Downey group advocating the placing of the Juvenile Hall Building at a site other than Rancho Los Amigos and to report to the Board in two weeks if another site is found that is suitable for the need and is acceptable to the Superior Court Juvenile Judge and the 1954 County Grand Jury'. The matter was then continued until October 5, 1954 at 11:00 a.m., and the matter referred back to the Planning Commission with the recommendation that 'those portions of the proposed amendments that would allow a permit to be granted for governmental uses without a public hearing be eliminated.' The record is apparently silent as to whether any such conferences were had with the Downey group, or whether any other location was considered.
The following appears from the affidavit of Mary E. Hollis who was present at the October 5, 1954 meeting of the Board of Supervisors, at 9:00 a.m.: 'at which time Harold W. Kennedy, County Counsel, did propose an entirely new ordinance, * * * enacting new Sections 518 and 519 and relating only to juvenile halls; that Mr. Kennedy advised * * * that this matter would have to be referred to the Regional Planning Commission for recommendation and, without throwing the matter open for discussion or hearing to the public present, the Board of Supervisors did then pass a resolution for unanimous action, referring the matter to the Regional Planning Commission; that this occurred at about 9:30 a.m. on said date; that at about 10:15 a.m. on said date, * * * a representative of the Regional Planning Commission, Mr. John L. Clemmons * * * advised the Board that the Regional Planning Commission had met and approved the recommendation'.
Mr. Kennedy, the County Counsel, 'then read to the people present the proposed ordinance together with a purported 'urgency clause' * * *, (making the new ordinance immediately effective) that affiant, together with several other members of the public present, did state their opposition to the proposed change by reason of the fact that the same had never been noticed for hearing before the Regional Planning Commission, that no discussion had been had concerning the propriety of it * * * and that the proposed legislation constituted a 'railroading' of the legislation', and urged the Board not to pass the legislation but to refer the matter back to the Regional Planning Commission for action in accordance with law; 'that the Board thereafter * * * did pass the ordinance as proposed over the objection of the people present at said hearing.' The 'urgency clause' had not been submitted to the Planning Commission.
The Board of Supervisors then ordered 'that public hearing in the matter of the proposed amendments to the Zoning Ordinance to permit governmental use of property in any zone after a permit has been obtained, be closed'. Having passed the new amendments or additions relating only to juvenile halls, application was [286 P.2d 822] made to the Regional Planning Commission for a special permit to use the Rancho Los Amigos site for a Juvenile Hall, and the Commission then caused notice to be published of a public hearing thereon to be held November 9, 1954. On November 3, 1954 the Superior Court issued an order restraining the holding of said meeting pending hearing of an order to show cause in this case. At the hearing of the order to show cause, the restraining order was vacated and a preliminary injunction denied. This action was followed by the present appeal.
The trial court held that the Board of Supervisors did have jurisdiction 'to adopt the Ordinance amending the Zoning Ordinance by adding thereto Sections 518 and 519 without Regional Planning Commission holding a public hearing before recommending the passage of the Ordinance to the Board of Supervisors * * * for the following reasons:
'1. The Regional Planning Commission did hold one public hearing in connection with a proposed amendment to the Zoning Ordinance which would permit the use of the property in any zone for governmental purposes if a permit was obtained from the Planning Commission.
'2. The Regional Planning Commission submitted its recommendation to the Board of Supervisors for an Ordinance to accomplish this purpose.
'3. The Board of Supervisors held at least one public hearing.
'4. The Board of Supervisors submitted to the Regional Planning Commission its proposed changes in the Ordinance which the Planning Commission had submitted to it. The changes suggested by the Board restricted the right of the County with respect to governmental use in any zone to juvenile halls or juvenile hall facilities and required a public hearing before the Regional Planning Commission before a permit for such use could be granted and placed the burden of proof on the applicant for the permit to show that such use would not be detrimental to the public welfare. * * * Thus the Ordinance was well within the purview of the subject submitted to the public hearing.
'5. The Regional Planning Commission approved the changes made by the Board.
'6. It was not necessary for the Regional Planning Commission to hold a public hearing in connection with said changes for the reasons heretofore given.
'7. The Board of Supervisors held a public hearing on the amendment which had been approved by the Planning Commission. * * * No public hearing is required to be held by the Planning Commission under Section 65655 (Government Code.) This must be especially so when the changes made by the legislative body is less of an invasion of private rights than the Commission was willing to grant.
'It therefore appears that the proceedings taken in connection with the Ordinance in question complied with the State law.'
Appellants' brief presents two basic issues: '1. Has the County of Los Angeles complied with jurisdictional and statutory requirements, set forth in the Government Code, in enactment of its purported amendatory ordinance authorizing by 'special permit' a juvenile hall facility in any zone? 2. In the purported amendatory ordinance valid, in view of the requirement of Government Code Section 65802 that all regulations shall be uniform for the use of land in such zone?'
It is the respondents' contention that no further public hearing was required in respect to the final proposed amendment since 'The ordinance finally enacted may encompass less if its subject matter was within the hearings before the board and commission'.
In Schofield v. City of Los Angeles, 120 Cal.App. 240, 244, 7 P.2d 1076, 1077, cited by both parties, the reviewing court had before it a similar argument that 'the legislative intent was, not that the zone ordinance should be submitted to the city planning commissioners for their report and recommendation, but only that the subject-matter of the ordinance was required to be submitted'. (Italics added.) [286 P.2d 823] The court refused to sanction such an interpretation, and held that the requirement in question 'was mandatory, and any such ordinance passed in violation of the charter provision is void'.
An examination of the case law on the subject and a consideration of the purposes of the zoning regulations in question, lead to the conclusion that the trial court was in error and that the procedure utilized in adopting the final amendments without a further public hearing before the Planning Commission does not meet with the requirements of law.
As said in Johnston v. Board of Supervisors, 31 Cal.2d 66, 76, 187 P.2d 686, 693, 'The procedure set forth in the ordinance is designed to protect interested citizens and property owners. The requirement that the Board of Supervisors follow this procedure cannot be disregarded on the ground that the board can modify the procedure by amending the ordinance. The State Planning Act prescribes a definite procedure for amending the local planning ordinance. It provides for public hearings before the local planning commission before adoption of the ordinance and before any amendments may be made to the ordinance after its adoption, as a means of protecting interested citizens and property owners. * * * Any change in the proposed ordinance must be submitted to the commission for additional public hearings'. (Italics added.)
The johnston case further states: 'The Board of Supervisors does not now have unlimited power to make any change in the ordinance. Substantially the same procedure used in adopting the ordinance must be followed in making changes. The board has no power to make changes until it has submitted them to the commission for public hearings, where interested parties may appear and present arguments in opposition thereto. * * * If the Board of Supervisors, in an administrative capacity can ignore the clear provisions of the ordinance, it was idle to prescribe the procedure for amendments'.
The same principle is expressed in Simpson v. Hite, 36 Cal.2d 125, 134, 222 P.2d 225, 231, where the court says: 'The legislative body shall not change the plan without referring the proposed change to the planning commission for a report * * * and the planning commission must hold public hearings on such proposed changes'.
That the facts in the cited cases are not identical with those involved in the present litigation in no manner detracts from the salutary, basic principle there expressed and clearly applicable in the present case. And, as said in appellants' brief, 'It is difficult to conceive of a situation where language, even if dictum, should be more persuasive or more controlling on this Court. In view of the fact that since the Simpson case the legislature has twice more reenacted this language identically as there interpreted, only reaffirms appellants' position as it must be assumed that the legislature reenacted the language with those interpretations in mind'.
Under Section 65656 of the Government Code, the Board of Supervisors, as the legislative body, 'may initiate and adopt an ordinance' when deemed 'for the public interest'. Where this is done, Section 65657 requires that 'The legislative body shall first refer such proposal * * * to the planning commission for a report. Before making a report the planning commission shall hold at least one public hearing in the same manner as heretofore prescribed in this article'.
In effect, if not in fact, when the Board of Supervisors for the first time on October 5, 1954, presented the amendment which added two new sections relating only to juvenile halls, it did 'initiate' a new proposal, and with notable speed and dispatch, referred this new enactment to the Planning Commission which in turn approved the same forthwith and returned it to the Board. All this occurred prior to the 11:00 a.m. hour at which was scheduled the original ordinance relating only to 'the use of property in any zone for governmental purposes'. The necessity for such haste is not apparent.
The respondents' argument that this procedure was proper because the lesser subject, juvenile halls, was included in the [286 P.2d 824] greater subject of the original ordinance relating to governmental use, is not convincing. The change was material and important. As said in the appellants' brief, 'Material injury could as easily occur by slight change in wording as by completely new subject matter'. If a loose and unrealistic interpretation be approved, the basic protection which is supposed to be afforded by zoning regulations is effectually destroyed, and the matter left to the discretion of the Board of Supervisors.
The importance of the difference between the first and second proposed amendments becomes more manifest when it is considered that at the public hearing before the Planning Commission on the first ordinance the matter of juvenile halls was not specifically involved, and according to the Bargeman affidavit, no discussion of that subject was permitted. Then, when the second amendment directly relating to juvenile halls was brought up, this was apparently hurried through the legislative mill within the space of about an hour, without any public hearing before the Planning Commission, thus becoming a fait accompli before the 11:00 a.m. hour to which time the previous ordinance had been set for hearing.
That the Downing district was strongly opposed to the location of juvenile home facilities in its residential district was well known to both the Board of Supervisors and the Planning Commission. And, as said in appellants' brief, 'it is obvious that in a county as large as Los Angeles County, there must necessarily be * * * property zoned for use not inconsistent with the institutional use here intended to be provided. Appellants are reluctant to believe that the County is suggesting that there is no land suitable and available for a juvenile hall elsewhere than in the center of a completely developed, utilized and zoned single family residential area.' Such being the situation, these residents and business men whose interests were about to be affected by this intrusion, should have been accorded every opportunity to present their views, as well in relation to the second proposed ordinance as to the first.
Both the Regional Planning Commission and the Board of Supervisors are, it may here be said, the representatives and servants of the people of Los Angeles County. The authority and jurisdiction of these public bodies are closely prescribed and limited by the applicable law; the validity of their acts depends upon strict adherence to the provisions of such laws. And, as between two possible interpretations, that which favors the sovereign people for whose benefit such limitations were imposed, must be adopted.
Important as the matter of juvenile facilities undoubtedly is, the preservation of zoning regulations and the protection of those who have placed their reliance upon such regulations, is of equal or paramount importance. It is conceded by respondents that the County Zoning Ordinance 'includes the county itself within the definition of the word 'person' and thereby makes the county subject to its own Zoning Ordinance'. It therefore follows that no violation of any of the terms of such ordinance should be countenanced either by the county bodies having charge of the matter or by a reviewing court to which the matter has been referred. It becomes unnecessary to consider the other contentions made by appellants.
For the reasons hereinbefore mentioned, the amendatory ordinance presented for the first time on October 5, 1954 and on that date referred to and approved by the Regional Planning Commission without a public hearing before the Planning Commission, is hereby declared null and void; the order appealed from is reversed, and the cause remanded to the Superior Court for appropriate action in conformity with this decision.
WHITE, P. J., and DRAPEAU, J., concur.