Opinion
Hearing Granted Dec. 6, 1943.
Appeal from Superior Court, Los Angeles County; Myron Westover, Judge.
Action by Paul Metcalf and another against County of Los Angeles for an injunction restraining the enforcement by the county of a zoning ordinance. From a judgment dismissing the action, the plaintiffs appeal.
Affirmed.
COUNSEL
Anderson & Anderson, of Los Angeles, for plaintiffs, and appellants.
J. H. O’Connor, Co. Counsel, and Edward H. Gaylord, Deputy Co. Counsel, both of Los Angeles, for defendant and respondent.
OPINION
MOORE, Presiding Justice.
The question for decision is whether a land owner who purposes to establish a rock crusher in an area zoned for residential and agricultural uses may procure an injunction to be issued restraining the enforcement by the county of the zoning ordinance where the county has an effective ordinance regulating the issuance of permits to maintain rock crushers, without having first exhausted his remedies before the administrative board.
The chancellor below denied plaintiffs an injunction against the enforcement of certain zoning ordinances in so far as those ordinances prohibit the use of the lands of plaintiffs for the purpose of maintaining a rock crusher thereon or prohibit their use for excavating rock, sand, or gravel therefrom, or for maintaining other business incidental to the rock crusher. Plaintiffs alleged that such ordinances inhibit the only use for which their lands have any value, to wit, excavation, crushing and sale of rock, sand and gravel. The case was tried principally upon a stipulation of facts, and findings having been waived the decree dismissed the action with the preamble (1) that it had been "prematurely brought in that none of the plaintiffs applied for an exception to the zoning ordinance attacked and (2) none of the plaintiffs applied for a permit pursuant to ordinance No. 1454, new series, to establish or maintain a rock quarry." On this appeal the controversy rages primarily about the question as to (1) whether appellants have an adequate remedy at law and (2) whether, in failing to exhaust their administrative remedy, they are now entitled to equitable relief.
There are four separate plaintiffs, each owning a parcel of land aggregating in all about 83 1/2 acres. Plaintiff company is organized primarily to engage in the rock crushing business and other business incident thereto. It has obtained options to purchase the several parcels from its coplaintiffs, and it will exercise such options "if only, and when the same can be legally used for such rock development and rock crushing purposes * * * and rock crushing * * * can be legally * * * carried on upon * * * each of such parcels without interference * * * by defendant".
This action was brought for the purpose of preventing by injunction the enforcement of ordinance 1494, new series, of Los Angeles County. By section 21 of this ordinance the unincorporated area of Los Angeles County is divided into 16 zones. It makes provision for any property owner to petition the Regional Planning Commission to have his property excepted from any particular restriction applicable to the zone in which his property is located; provides for the hearing of such petition, for the filing of its report with the Board of Supervisors, for the Board to except such property from a specified restriction if satisfied that the exception is necessary for the preservation and enjoyment of any substantial property right of the petitioner, and is not materially detrimental to the public welfare or injurious to any neighboring property. No one of the plaintiffs ever applied for any exception under section 21.
All of the property belonging to the plaintiffs is confined to Zone A 1 which excludes it from the uses of maintaining a rock crushing plant. Unless restrained by injunction the county will compel the owner of such property to restrict its use solely to agricultural and residential uses. Every portion of each of the parcels discussed in the complaint is within and adjacent to a wash and is within one-half mile of more than one public highway. To operate a rock crusher in such location would be to violate the ordinance.
In addition to the zoning ordinance, there is another ordinance, 1454, new series, regulating the maintenance of rock quarries, gravel pits and rock crushing plants. That ordinance forbids the operation of any rock quarry, gravel pit or rock crushing plant in any portion of the unincorporated area of the county adjacent to or within a mile of any stream or wash or public road or within a half mile of any bona fide human habitation unless licensed to do so by the supervisors. However, the ordinance provides that any person may apply to the chief engineer of the Regional Planning Commission for a license to establish such business; that the application shall be referred to the Regional Planning Commission; that it shall hold a public hearing on the application, after publishing notice of such hearing in the manner prescribed. After such hearing the Commission must report its findings and recommendations to the Board of Supervisors and deliver therewith a transcript of the testimony received at the public hearing. Upon such report and evidence, the Supervisors must determine whether or not the maintenance of such proposed rock crusher will be likely to become a public nuisance or dangerous or detrimental to the public peace.
The same ordinance also provides that, upon the determination by the Board of Supervisors that quarrying of any material in a particular area would create a flood hazard or would be otherwise dangerous to the public safety, then the applicant for a license must first obtain from the Chief Engineer of Los Angeles County Flood Control District a permit to excavate in such area. Such permit may be issued upon certain conditions prescribed in the ordinance requiring the erection of dikes for the adequate protection against the flow of flood waters. No one may make an excavation within such area except after receiving such permit and conforming therewith.
As a part of the ordinance (Sec. 5.2) the Supervisors found that the quarrying of rock in a vast area which includes the lands of plaintiffs creates a flood hazard and in other ways may be dangerous to the public safety. The ordinance proscribes other acts in the Los Angeles County Flood Control District such as would necessarily occur at a rock crushing plant.
(1) A review of the ordinances in the light of the location and character of the lands of plaintiffs induces the conclusion that plaintiffs had an adequate remedy at law. It is fundamental that equity will not assume jurisdiction when the complainant has a complete legal remedy. Mandamus is a legal remedy and it may compel a reasonable exercise of the discretionary powers of an administrative board. In re McDonough, 27 Cal.App.2d 155, 163, 165, 80 P.2d 485. When mandamus is available it is an adequate remedy and defeats a suit for injunction. City of South Pasadena v. Pasadena Land & Water Company, 152 Cal. 579, 595, 93 P. 490; Moore v. Superior Court of Contra Costa County, 6 Cal.2d 421, 57 P.2d 1314. Had appellants been by the administrative board denied a variance under the zoning ordinance and a license to operate on their lands a rock crushing plant, such denials would have afforded them the right and occasion to institute a proceeding for a writ of mandate. By their action then for such writ in the Superior Court they could have tested the constitutionality of the zoning ordinance. The writ would have issued under either of two conditions, viz.: (1) The total nullity of the zoning ordinance or (2) its invalidity with respect to the lands of plaintiffs because of an unfair discrimination against those lands. Reynolds v. Barrett, 12 Cal.2d 244, 83 P.2d 29. In the Reynolds case the mandate was granted because the court found that the zoning ordinance was void and also that it was unreasonable and arbitrary as applied to the Reynolds property.
The propriety and efficacy of mandamus as a method of attacking an oppressive law was demonstrated when a dairy company sued to restrain a municipality from enforcing its ordinance requiring all vendors of pasteurized milk to have the milk pasteurized within the city limits. It was held that the plaintiff could not question the validity of the ordinance because it had not first applied to the local authorities for a license to sell its milk products. A refusal of its application would have placed it in a position to invoke the "remedy through mandamus to right the wrong that it has suffered." Lang’s Creamery, Inc., v. City of Niagara Falls, 251 N.Y. 343, 167 N.E. 464, 465.
Even though the enforcement of the zoning ordinance had been enjoined a license to operate the rock crusher could still have been denied for the reason that the supervisors must determine upon a consideration of the facts whether the establishment of a rock crusher in a proposed location will be likely to become a public nuisance or will be dangerous or detrimental to the public peace. The validity of the zoning ordinance and the sufficiency of the evidence offered by the plaintiffs upon their application for a license to operate a rock crusher could both have been determined in a mandamus proceeding. Had the court determined that a denial of a permit to operate the rock crusher was justified the validity of the zoning ordinance would have been immaterial. On the other hand upon the application for both the license and the exception, the Regional Planning Commission might have concluded that plaintiffs were entitled to the exception and that their proposed rock crusher would not be a public nuisance or detrimental to the public peace, and thereby plaintiffs would have gained both the exception and the license from the Board of Supervisors. The situation of plaintiffs is not unlike that of the minority stockholder who seeks the restoration of some right of which he conceives the corporation to have been illegally divested. Before he can sue the directors and the other wrong doers he must make demand upon the officers to institute the appropriate action and after their refusal to proceed he must appeal for redress to the stockholders at large. Unless he shows that he has exhausted such legal remedies, his action will not prevail. Fornaseri v. Cosmosart Realty Corp., 96 Cal.App. 549, 556, 274 P. 597; Hawes v. Oakland, 104 U.S. 459, 26 L.Ed. 827; 14 C.J. 944, sec. 1466; 18 C.J.S., Corporations, § 574; 6 Fletcher Ency. of Corporations 6934, sec. 4067.
Appellants argue that they could not mandamus the Supervisors to grant something which that board may in the exercise of a reasonable discretion deny. It is true that if reasonable minds might differ as to the reasonableness of the restriction, the decision of the administrative board must prevail. A complainant must show that a valid ordinance under attack is arbitrary, oppressive and discriminatory as applied to his property. Otherwise he is not entitled to an exception. In support of their proposition that the ordinance is void as it applies to their properties plaintiffs cite the cases of Hurst v. City of Burlingame, 207 Cal. 134, 277 P. 308; People v. Hawley, 207 Cal. 395, 279 P. 136; Reynolds v. Barrett, 12 Cal.2d 244, 83 P.2d 29; In re Kelso, 147 Cal. 609, 82 P. 241, 242, 2 L.R.A.,N.S., 796, 109 Am.St.Rep. 178. In the Hurst case it was found by the court that the ordinance was not legally adopted, hence was void; also that, as applied to the Hurst property, it was arbitrary, oppressive and discriminatory. The Supreme Court specifically approved of that finding. The Hawley case was three appeals. In the first action, brought by the People, the nuisance created by the defendants and abated by the judgment resulted from the operation of a rock crusher. The other two actions, brought by Los Angeles Rock and Gravel Company, attacked (1) the validity of an ordinance regulating excavations near abutting streets and (2) a zoning ordinance which placed the Hawley rock quarry in a residential zone. In those cases the establishment or maintenance of a rock crusher was not involved. The enforcement of the ordinances was enjoined because they forbade excavations for rock which may be done without distress to anyone. In the Kelso case, also, the ordinance prohibited the mere excavations for rock in the prescribed area. It was there held, in enjoining the enforcement of a penal ordinance which inhibited rock quarries, that rock or gravel may "be so severed from the land and removed as not in the slightest degree to inflict any injury which the law will recognize." In the Reynolds case the building inspector having denied a permit to erect a business structure, a writ of mandate was issued based upon a finding that the zoning ordinance unfairly discriminated against the parcel of plaintiff. Reasonable minds could not have differed as to the discriminatory nature of the ordinance as applied to the Reynolds lot. Page 251 of 12 Cal.2d, 83 P.2d 29.
Appellants urge the applicability of the recent case of Bank of America N. T. & S. Ass’n v. Town of Atherton, 60 Cal.App.2d 268, 140 P.2d 678. That holding resulted from sustaining a demurrer without leave to amend. The allegations are that the town’s zoning ordinance is "unconstitutional and void," and follow this with a declaration of facts showing that the city council in the very enactment of the ordinance arbitrarily discriminated against the plaintiff’s land. For the purposes of the demurrer those allegations were deemed to be true. The decision is in harmony with the conclusion we have derived from a consideration of the authorities herein cited. It may be stated as a rule that if an ordinance is wholly void it may be attacked by injunctive proceeding without first seeking redress at law; but if a zoning ordinance is valid yet is discriminatory as to a particular parcel within the zoned area, legal relief must first be sought from all sources available to the petitioner before equitable cognizance will be taken of his plea.
The question of an available remedy did not arise in the Atherton case because the facts established by the complaint were, on the trial of the demurrer, final; the ordinance was void. In the instant case the ordinance was valid and the court, basing its act upon defensive pleadings and competent proof, found the availability of legal remedies that had not been applied for. From our inspection of the record it appears that a finding could have been made that the ordinances were not unreasonable as to the lands of plaintiffs.
(2) In addition to the handicap of plaintiffs’ obligation to exhaust their legal remedies before they may, by means of injunctive process, defeat the effect of a zoning ordinance, they are faced with a line of authorities which require petitioners in equity similarly situated first to allow the administrative board itself to determine whether under the zoning ordinance an exception should be granted. That such course is the law is established by numerous decisions. San Joaquin & K. R. Canal & Irr. Co. v. County of Stanislaus, 155 Cal. 21, 99 P. 365; San Diego, etc., Co. v. Jasper, 189 U.S. 439, 441, 23 S.Ct. 571, 47 L.Ed. 892; In re Kehr, 190 Cal. 401, 212 P. 913; Abelleira v. District Court of Appeal, 17 Cal.2d 280, 289, 292, 109 P.2d 942, 132 A.L.R. 715; United States v. Superior Court, 19 Cal.2d 189, 194, 120 P.2d 26; Alexander v. State Personnel Board, 22 Cal. __, 137 P.2d 433; Teeter v. City of Los Angeles, 209 Cal. 685, 687, 290 P. 11; Gantner & Mattern Co. v. California Emp. Comm., 17 Cal.2d 314, 317, 109 P.2d 932; Louis Eckert Brewing Co. v. Unemployment Reserves Comm., 47 Cal.App.2d 844, 847, 119 P.2d 227; Weaver v. State Board of Medical Examiners, 54 Cal.App.2d 777, 129 P.2d 730.
The rule announced in the cited authorities is one of procedure long established and enriched by repetitious holdings. It is a fundamental rule binding upon all courts as declared by the Chief Justice in Abelleira v. District Court of Appeal, supra. In that decision it is held that remedy by the administrative body must be "exhausted before the courts will act." Page 292 of 17 Cal.2d, page 949 of 109 P.2d, 132 A.L.R. 715. The rule is there aptly illustrated by numerous pertinent authorities. Some of their antecedents may with profit be reviewed. In the San Joaquin & Kings River Canal & Irrigation Company case, decided in 1908, the Supreme Court could see "no good reason why the general principle [requiring a party to an action in equity to exhaust his legal remedies] may not be extended so as to require parties who are afforded by statute an opportunity to obtain adequate relief by application to a legislative or administrative municipal body, like the board of supervisors, with reference to the very matter of which they complain in an action in equity, to seek that relief from such body before being permitted to maintain an equitable action for the purpose." Page 27 of 155 Cal., page 367 of 99 P. In San Diego, etc., Co. v. Jasper [ 189 U.S. 439, 23 S.Ct. 572, 47 L.Ed. 892], the question was raised where, under the ordinance complained of, the "appellant was free to apply for a modification of the rates" but failed to do so, and no allegation was made that the board administering the ordinance was corrupt or that it intended, in spite of the evidence, to adhere to unjust rates so as to destroy the value of the appellant’s works. The doctrine there announced has been uniformly followed by both state and federal courts. In the Gantner & Mattern Company case the Supreme Court denied a writ of mandate because the plaintiff had not exhausted its statutory remedies. Citing In re Kehr, supra.
It is thus established that the general rule requiring a litigant to exhaust his legal remedies before seeking equitable relief, is to be applied to those who have been provided a procedure for relief by the terms of the very ordinance of which he complains and which created the acting administrative board. San Joaquin & King’s River Canal & Irrigation Co. v. County of Stanislaus, supra, 155 Cal. 21, 27, 99 P. 365. As a result equity may now jealously guard her domain by reason of the increase in the number of tribunals created for the purpose of making factual determinations and of avoiding the hardships of oppressive statutes as applied to the facts related by each complainant. To avoid the arbitrary refusal of a variance by the administrative boards, safeguards have been placed about the hearings authorized, namely, sufficient notice of the application and of the hearing, of its being open to the public, and the right of judicial review.
Plaintiffs contend that before seeking an injunction to restrain the enforcement of an invalid ordinance they are not obliged to ask a favor; that the order of the Board of Supervisors is not an adequate, plain and complete remedy. They cite Rubin v. Board of Directors of Pasadena, 16 Cal.2d 119, 104 P.2d 1041, to the effect that the board could only have "granted a favor." The use of that language by the Supreme Court came about by virtue of an attempt to distinguish the nature of the act of the city’s board of trustees in denying a variance under a zoning ordinance from the nature of the act of the Board of Funeral Directors. Drummey v. State Board of Funeral Directors & Embalmers, 13 Cal.2d 75, 87 P.2d 848. It was there held that Drummey’s license to engage in business as a funeral director is property and "may not be revoked by an administrative body without the right of review by a trial court exercising an independent judgment upon the evidence introduced." [16 Cal.2d 119, 104 P.2d 1044.] But in the Pasadena Board’s rejection of Rubin’s petition for a variance he was deprived of no right. His lot was zoned as were all other lots in the zoned area according to a valid zoning ordinance. He had as much after his variance was denied as he had before. If the board had granted his petition it might have improved the earning power of his lot--granted him a favor--but its rejection deprived him of nothing. His lot had by a valid ordinance been incorporated into a residential zone. No circumstances were there proved to warrant the holding that the ordinance imposed an arbitrary and unreasonable restriction upon the Rubin lot. Rubin followed the accredited and traditional route to bring his cause to a final determination. He first applied to the administrative board for a variance. Upon its rejection of his petition he sought by mandamus to compel its favorable action. On appeal by the city the Supreme Court agreed with the board of trustees that the facts did not entitle Rubin to a variance and held that the grant of a dispensation is a matter of grace and that to deny it is not the denial of a statutory right but merely leaves in operation the ordinance adopted by the trustees of the city for the common good.
Plaintiffs’ thrust that the judgment of the Regional Planning Commission upon their petition would be governed by a branch of the county government, falls short of its mark. There is a presumption that public officials will perform their duties, not that they will be corrupt or endeavor for ulterior reasons to deny legal rights and defeat justice. The official obligation of members of the Regional Planning Commission as well as of the Supervisors is to support the constitution and the laws of the State.
The judgment is affirmed.
W. J. WOOD and McCOMB, JJ., concur.