This is an appeal from a judgment in a mandate proceeding wherein it was ordered, among other things, that the City Council of the City of Commerce either repeal a resolution which adopted a "general plan" or submit the same to a vote of the electors.
In a petition for a writ of mandate, petitioners allege, among other things, that they are electors of the City of Commerce (hereinafter referred to as city) and entitled to vote in any referendum election in the city; that the city is organized under the general laws of the state and has no particular charter provisions for referendum of any legislative enactments
An answer was filed by the clerk and the council wherein they denied, in effect, that petitioners had circulated a petition protesting the resolution, denied that the petition was circulated and signed by qualified electors and denied, in effect, that the petition contained the signatures of 632 electors and that there were 3,267 electors in the city. The answer also alleged that no cause of action was stated and that "the adoption of a general plan is not a subject of referendum under the laws of the State of California," and that a resolution, as distinguished from an ordinance, is not subject to referendum. Defendants, in substantially all other respects, in effect admitted the allegations of the petition for the writ of mandate.
The trial judge, after a hearing, made findings of fact and conclusions of law.
Appellants now assert that in a general law city the adoption
With reference to the claim of lack of evidence to support the findings, under the circumstances of this case, as here presented, this court must and does presume that the trial court received evidence which supports its findings. (White v. Jones, 136 Cal.App.2d 567, 571 [288 P.2d 913]; Dumas v. Stark, 56 Cal.2d 673, 674 [16 Cal.Rptr. 368, 365 P.2d 424]; Hearst Publishing Co. v. Abounader, 196 Cal.App.2d 49, 55 [16 Cal.Rptr. 244].)
Had the appellants wanted a court reporter to take down and transcribe the proceedings, it would have been an easy matter to request that such be done, or they otherwise could have brought a proper record to this court if it was intended to question the sufficiency of the evidence. There is no merit to the assertion that the evidence does not support the findings.
The real question in this case is whether, under the general law, the adoption by a city council of a general plan is subject to referendum.
Appellants argue that the adoption of the general plan under the applicable provisions of the Government Code (§§ 65400-65555) is not subject to the referendum, stating, in effect, that the general plan is not a zoning ordinance, that it has no legislative effect, that the adoption of such a plan is an administrative and executive act and not a legislative act.
The operation of the Planning Act is optional or permissive with the council. The statute states on its face that a city may have a planning commission; however, a planning
"... While municipal planning embraces zoning, the converse does not hold true. They are not convertible terms. Zoning is not devoid of planning, but it does not include the whole of planning. Zoning is a separation of the municipality into districts, and the regulation of buildings and structures, according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land. This is the constitutional sense of the term.... Planning has a much broader connotation. It has in view, as we have seen, the physical development of the community and its environs in relation to its social and economic well-being for the fulfillment of the rightful common destiny, according to a `master plan' based on `careful and comprehensive surveys and studies of present conditions and the prospects of future growth of the municipality,' and embodying scientific teaching and creative experience. In a word, this is an exercise of the State's inherent authority, antedating the Constitution itself, to have recourse to such measures as may serve the basic common moral and material needs. Planning to this end is as old as government itself — of the very essence of an ordered and civilized society....
Professor Haar in the article above cited (68 Harv. L. Rev. 1175) further states that if the master plan is to have "... a directly controlling influence on zoning regulation, it would appear necessary to have it legislatively adopted, rather than merely stated by the planning authorities and functioning as an interesting study without much direct relevance to day-to-day activity. In the past, the fear that legislative adoption and amendment might prove overly cumbersome has caused most planners to advise excluding the local legislature from such direct participation at the planning
"The master plan symbolizes a change in the organization of the land market. Its primary justification is an assumption that the interdependence of land uses in an industrialized society makes necessary municipal controls over private property. This is the challenge — to create an institutional arrangement which can give meaning to planning ideas by delimiting them for effective use in the enactment of regulatory ordinances, and which can supply the courts with a sensible and reasonably precise basis for evaluation and review." (Italics added.)
The general plan in this instance very definitely has a direct effect upon all of the property in the city and upon its future development. The plan sets out that it is to become "the framework within which specific planning can be undertaken" and to be the "basis for the preparation of precise plans." The plan recognizes in this particular case that the city "was largely developed before it was incorporated," however, it calls for the enhancing of recreational facilities and the expansion and consolidation of certain commercial activities. It is stated that there are about 10,000 residents of the city and about 75,000 persons who work in the industries located in the city and that the "general plan is for the people." (Presumably for the "people" who are residents of the city and not the "people" who just work in the factories and do not live in the city.) It is contemplated by the plans that there will be "higher skilled and better pay categories," a "convenient walk-to-work arrangement," a gradual lessening of elementary school capacity and an increasing demand for "adult cultural amenities, and more passive types of recreation." Further, it is indicated that due to population density, single-family dwellings will become apartment houses. Standards of density are set forth and "[s]etbacks, driveways, walks, landscaping and service facilities would be controlled by the zoning or other ordinances commensurate with the standards above." (Italics added.) It is anomalous that the general plan states that "the objective element of the general plan indicates how the people want their City to
Under the title of "Objectives" in this plan, it is set forth that the city is about 6 1/2 square miles in size with less than 10 per cent of the land vacant, that the land use pattern is firmly set; however, changes in the future "should be made in accord with the following basic land use objectives." There then follow certain itemized provisions for "anticipated future land use," reservations for living purposes of selected land, location of industry, rails, highways, power and water lines, etc. The plan envisions the reduction of single-family dwellings and "as this occurs, development for a combination of high-rise and garden apartments and the closing of unnecessary streets should be encouraged to take advantage of the optimum use of the limited amount of residential land." Shopping centers are located on the general plan maps and business and commercial offices are set out for certain streets. Under the title of "Circulation Element" it is set forth, in effect, that the city under the circumstances has an unusual traffic problem is that there is a great deal of trucking and through highway travel. It is recommended in the plan that many street improvements be made, certain streets closed, grade separations made, and that certain private roads be dedicated to the public. The general plan also sets forth that "after adoption of the General Plan, any subsequent determination made by the Planning Commission should first be reviewed as to its conformity with the General Plan" and the council authorized "to adopt and use the General Plan as a guide for orderly community growth and development and to systematically correct deficiencies in existing facilities and provide for needed facilities" and further that "the General Plan should be referred to as a guide in making decisions that affect the elements of the General Plan." Also, that "implementation of the General Plan may be carried out by the City Council when it budgets and appropriates annually amounts to be expended for capital improvements" as such latter are set forth, such as grade separations, highway changes, public buildings and drains, all as set forth in the plan.
It is apparent that the plan is, in short, a constitution for all future developments within the city. No mechanical reading of the plan itself is sufficient. To argue that property rights are not affected by the general plan (as the city so asserts) as adopted ignores that which is obvious. Any zoning
It surely cannot be contemplated that the council, in the adoption of future zoning ordinances (which are admittedly legislative and subject to referendum will go contrary, (in all but rare instances), to the general plan which it adopts.
In 62 Corpus Juris Secundum, Municipal Corporations, section 454, at pages 874-875, under the title of "Tests as to legislative or administrative acts" it is stated: "The form or name of an act of municipal authorities, such as whether it is called an ordinance or a resolution, is not determinative of its legislative or administrative nature, with respect to
"Acts of a legislative body which are legislative in nature are subject to the referendum process, whereas acts which are administrative in nature are not. The difference between the two types of activity is set forth in McKevitt v. City of Sacramento, 55 Cal.App. 117, 124 [203 P. 132], as follows: `Acts constituting a declaration of public purpose, and making provisions for ways and means of its accomplishment, may be generally classified as calling for the exercise of legislative power. Acts which are to be deemed as acts of administration, and classed among those governmental powers properly assigned to the executive department, are those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body, or such as are devolved upon it by the organic law of its existence.'
"McQuillin on Municipal Corporations (3d ed.), volume 5, pages 255-256, states: `Again it has been said: "The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it."' (Citing Seaton v. Lackey, 298 Ky. 188 [182 S.W.2d 336, 339].)"
It has been held that an ordinance which, in effect, clarifies
Under the circumstances we can discern no useful purpose which would be served by preventing the exercise of the democratic process, namely, the permitting a vote to be taken on the issue by the electorate of the city.
The judgment and order for the issuance of the peremptory writ of mandate is affirmed.
Wood, P.J., and Lillie, J., concurred.
"FINDINGS OF FACT
"That Petitioners are residents, freeholders, and legally qualified electors of the City of Commerce, County of Los Angeles, State of California, and as such are entitled to vote at any election for municipal officers in said City and to vote at any referendum election which may be called therein.
"That the City of Commerce is a Municipal Corporation and duly organized under the laws of the State of California, and under the provisions of the general laws of the State of California and that said City has no charter provisions for referendum of a legislative enactment to electorate; such referendum of said legislative enactment is governed by Division 4 of the Elections Code of the State of California.
"That at all times herein mentioned, LAWRENCE O'ROURKE was the duly appointed, qualified and acting Clerk of the City of Commerce; that MAURICE H. QUIGLEY was the duly elected, qualified and acting Mayor of said City; that CHARLES F. SCHEIBLER, JAMES W. BRISTOW, ROBERT B. SALERNO, and GEORGE H. CHAVEZ, and each of them, were the duly elected, qualified and acting City Councilmen of said City. That the legislative powers of said City are and at all times herein mentioned have been in said Mayor and Councilmen.
"That on August 19, 1963, said City Council duly adopted Resolution No. 63-22 entitled `A Resolution of the City Council of the City of Commerce Approving a General Plan.'
"That immediately after said adoption, said Petitioners, in conjunction with other qualified electors of said City, prepared, circulated and signed a Petition protesting against the passage of said ordinance and petitioning that said ordinance be forthwith repealed or that the same submitted to the vote of the qualified and registered electors of the City of Commerce as provided by law.
"That on September 12, 1963, said Petition was filed with the Respondent City Clerk. That said Petition purported to bear the signatures of 633 electors of said City of Commerce. That the total electorate of said City of Commerce is 3,267 electors.
"That the Respondent City Clerk failed and refused to examine said petition so as to ascertain whether or not said petition was signed by the requisite number of qualified and registered electors, to wit, 327. That said City Clerk did, however, set and place the petition before the aforesaid Mayor and City Council, and each of them, at the next regularly scheduled meeting of that body on September 16, 1963.
"That said petition was in the form required by law.
"That said City Council and Mayor in the regular course of said meeting, duly considered said petition and were urged to reconsider said resolution, rescind the same or to refer the same to the voters of the City of Commerce. That said City Council, after obtaining an opinion from the City Attorney of the City of Commerce, that the aforesaid resolution was not a proper subject to be referred to the electorate, accepted and passed a seconded motion to table and file said petition indefinitely.
"That said Mayor and Councilmen, individually and as a body, have failed and neglected to reconsider the aforesaid resolution and to repeal the same, or to take steps to submit the same to the vote of the electorate and, although formal demand was made, on or about September 16, 1963, on said officials, they did fail, neglect and refuse to reconsider said resolution or to repeal the same and have refused to submit the same to the vote of the electors of said City either at the next general municipal election or at any special municipal election called for that purpose, and said refusal is in violation of Division 4 of the Elections Code of the State of California.
"That petitioners have no plain, speedy, or adequate remedy at law.
"CONCLUSIONS OF LAW
"The Petition states facts sufficient to constitute a cause of action for mandamus.
"The adoption of a master plan has legislative effect; after its adoption all public buildings, streets, improvements, parks, etc., must conform to the master plan in the view of the planning commission (Government Code 65551-55).
"The adoption of a master plan is a local and municipal, as contrasted to a statewide, matter. Referendum is an appropriate procedure to review the adoption of the plan. (Reagan v. City of Sausalito, 210 CA 2d 618)."