MONROE, J. pro tem.
The petitioners and appellants brought this proceeding for a writ of mandate to compel the respondent Marvin Larson, as building inspector of the city of Rialto, to issue building permits pursuant to their applications
The facts pertinent to the litigation have been established by stipulation of the parties. Ordinance Number 295 was amended by ordinance Number 297 of the city of Rialto, in 1954. It provides in substance that no lot or parcel of land within the city shall be split or divided without first obtaining the approval of the planning commission. Provision is made for the filing of maps showing the proposed division and showing pertinent information relative to the improvements upon the property and the location and character of the existing public utilities and other like information. Provision is made for approval of the proposed splitting, providing that curbs and sidewalks are installed, the necessary sewer facilities taken care of, and that the lot sizes comply with the city ordinances. It is further provided "that such plan conforms to such policies as are or may be established by the planning commission."
The ordinances of the city relative to the issuance of building permits provide: "The application, plans, and specifications filed by an applicant for a permit shall be checked by the building official. Such plans may be reviewed by other departments of the city to check compliance with the laws and ordinances under their jurisdiction. If the building official is satisfied with the work described in an application for the permit and the plans filed therewith conform to the requirements of this code and other pertinent laws and ordinances, and that the fee specified ... has been paid, he shall issue a permit therefor to the applicant."
The stipulated facts are that shortly prior to making application for a building permit the petitioners each purchased a tract of ground of a size suitable for building purposes from a prior owner. These two parcels were parts of a single lot and the parties stipulate that the prior owner had not complied with ordinances 295 and 297. It is also agreed that the petitioners knew of these ordinances and of the noncompliance. Thereafter, application was made for building permits and
A number of questions are discussed by the parties but they are not necessary to a determination of this appeal. This is for the reason that this action is against the building inspector alone and the relief sought is a mandate requiring the issuance of the building permit.
On March 12, 1957, the planning commission of the city of Rialto adopted a resolution establishing policies of the commission in accordance with the provisions of Ordinance 297 heretofore quoted. Among other things this resolution provided that: "No building permits are to be issued on lot splits until all provisions of ordinance No. 297 and applicable policies of the planning commission have been met." It is to be noted that this resolution was adopted some days after the denial of the applications for building permits and at the time of such denial no such policy provision was in existence.
A complete answer to the questions involved in this proceeding seems to be found in the case of Munns v. Stenman, supra. In that case an application for a building permit had been denied and the city sought to justify its action by the terms of an ordinance which provided that the requirements of certain city ordinances relative to zoning and setback and similar regulations had not been met. It appeared, however, that the provision of the ordinance for the refusal of such permit for this reason had not been enacted until after the
In the Munn case reference is made to certain authorities which hold that the granting of a building permit may be delayed pending the passage of ordinances then under consideration which would affect its issuance. Respondent seeks some comfort from these decisions. It is to be noted, however, that there is involved in this action a resolution and not an ordinance. The provision in ordinance 297 which purports to vest in the planning commission the right to make whatever policies they see fit in connection with the approval of applications to split or to divide lots is of doubtful validity because it purports to grant an authority to make rules and regulations without laying down any test as to the type, purpose, and extent of such rules or regulations. In any event, there is nothing in that provision of the ordinance that could be construed as granting to the planning commission power or
The principles discussed and laid down in Agnew v. Culver City, 147 Cal.App.2d 144 [304 P.2d 788] are to the effect that an ordinance purporting to delegate power to act or to refuse to act without definitely laying down the general purposes and limitations of the power thus delegated is void and constitutes an unreasonable delegation of power.
However, as heretofore stated, it becomes unnecessary to undertake a decision on the validity or invalidity of the provisions of ordinances 295 and 297. It is to be seen that at the time the applications were made and denied, there existed no authority either by ordinance or statute permitting respondent, the building inspector, to refuse to issue the license because of noncompliance with those ordinances. That being so, and it being conceded that the then existing statutory requirements had been complied with, the petitioners were entitled to an issuance of the building permits. The trial court was therefore in error, not only in denying the writ, but in undertaking to require, by order, a compliance with the provisions of this ordinance and to require a conveyance or a dedication of a part of their property to the city.
The judgment is reversed and the cause remanded with directions to issue the writ in accordance with this opinion.
Griffin, P.J., and Shepard, J., concurred.