Opinion
Hearing Granted Feb. 15, 1940.
Appeal from Superior Court, Los Angeles County; Carl A. Stutsman, Judge.
Proceeding by David R. Rubin and another for a writ of mandate to compel the Board of Directors of the City of Pasadena and the members thereof to grant petitioners a permit to remove a house from their lot and use such property as a parking lot in variation of and as exception to a zoning ordinance. From an order directing the issuance of the writ, respondents appeal.
Reversed.
COUNSEL
Harold P. Huls, City Atty., and Thomas W. Le Sage, Deputy City Atty., both of Pasadena, for appellants.
Joseph L. Lewinson and Donald Armstrong, both of Los Angeles, for respondents.
OPINION
McCOMB, Justice.
From an order directing the issuance of a writ of mandate requiring appellants to issue to respondents a permit to remove a house located on a lot owned by them in the city of Pasadena and to permit them to use said property as a parking lot, in variation and as an exception to the Pasadena zoning ordinance, appellants appeal.
The essential facts are these:
In March of 1925 respondents purchased a piece of property in the city of Pasadena having a frontage 79.4 feet on Mentor avenue and 104 feet on California street. At the time the property was purchased it was and now is in zone R-2, that is, the property was restricted to single family dwellings, two family dwellings, one-room apartments, bungalow courts, three or four-family flats, boarding houses or rooming houses with the usual accessories, including garages. There was situated thereon a house. In 1930 respondents were permitted to use the west 40 feet of the property for commercial purposes, and a grocery store was placed thereon. At this time respondents moved the house which was on the lot to the northeast portion of the property.
April 26, 1938, respondents filed an application with the zoning committee of the planning commission of the city of Pasadena for an exception or variance from the use restrictions of the zoning code, so that they might use the east 64 feet of their property as a parking lot in conjunction with the grocery store located on the west 40 feet thereof. After a public hearing before the zoning committee, their request was unanimously denied, whereupon they appealed from such decision, as permitted by the zoning code, to the Board of Directors of the City of Pasadena. Thereafter on May 10, 1938, a public hearing of their appeal was heard before the Board of Directors. At this hearing there was received both oral and documentary evidence and the Board of Directors viewed the property in question. At the conclusion of the hearing the board denied respondents’ request and affirmed the decision of the zoning committee. July 19, 1938, respondents filed a petition in the superior court for a writ of mandate to compel appellants to grant their request for a variance under the city zoning ordinance. After a hearing before said court a judgment was rendered in favor of respondents herein and a writ of mandate was ordered issued as prayed, directed to appellants.
This is the sole question necessary for determination:
If a statute or ordinance reposes in a local board or officer discretionary powers, and also provides that such board’s or officer’s determination shall be final, will the exercise of the discretion so conferred be reviewed on mandamus in the absence of a showing that the board has abused its discretion?
This question must be answered in the negative. The law is settled in California that mandamus is not a proper remedy, in the absence of an abuse of discretion for reviewing the finding of a local board or officer vested with discretionary power by a statute or ordinance, if the statute or ordinance vesting the powers also provides that the board’s or officer’s determination shall be final. Wood v. Strother, 76 Cal. 545, 553, 18 P. 766, 9 Am.St.Rep. 249; Kerr v. Superior Court, 130 Cal. 183, 186, 62 P. 479; Mitchell v. McKevitt, 128 Cal.App. 458, 465, 17 P.2d 789.
In Wood v. Strother, supra, our Supreme Court says, 76 Cal. at page 553, 18 P. at page 771, 9 Am.St.Rep. 249: "In every case the tribunal that is to act must determine in the first instance whether the case is a proper one for its action. And in our opinion the true tests are whether its determination is intended by law to be final, and, if not, whether there is any other ‘plain, speedy, and adequate remedy.’ If the determination of the tribunal was intended to be final, it is plain that it cannot be disturbed, either on mandamus or in any other way."
In Kerr v. Superior Court, supra, 130 Cal. at page 186, 62 P. at page 480, our Supreme Court again says: "*** Moreover, it has been held that there is no appeal from a judgment rendered upon an accusation under section 772, at least by the accuser. In re Curtis, 108 Cal. 661, 41 P. 793, and cases there cited. Therefore (query), Is not the case at bar within the rule declared in Lewis v. Barclay, supra [ 35 Cal. 213], Fairchild v. Wall, 93 Cal. 401, 29 P. 60, and Wood v. Strother, 76 Cal. 545, 18 P. 766 [9 Am.St.Rep. 249],— that, where the determination of the tribunal or officer is final, it cannot be disturbed, either on mandamus or in any other way?"
In Mitchell v. McKevitt, supra, 128 Cal.App. at page 465, 17 P.2d at page 792, the rule is thus stated: "Looking to the language of the charter as it relates to the civil service and considering its general purpose, we are of the opinion that it is the intent of the charter that the decision of the commission upon the question of the examination before us should be final. Mandamus, therefore, will not lie. [Citing cases.]"
The cases of McDonough v. Goodcell, 13 Cal.2d 741, 91 P.2d 1035, 123 A.L.R. 1205, and Drummey v. State Board of Funeral Directors, 13 Cal.2d 75, 87 P.2d 848, relied upon by respondents are not controlling in the present situation, for in those cases the statutes conferred powers upon officials exercising state-wide jurisdiction without making their decisions final. It is to be noted that in the instant case the officials to whom the writ is directed are officials exercising purely local jurisdiction in matters in which the city charter makes their decisions final.
The zoning code referred to herein provided that the Board of Directors’ determination on appeal from a decision of the zoning committee should be final, subsection (j), section 12 of the zoning code of the city of Pasadena reading: "The Board, in conformity with the provisions of this ordinance, may reverse or affirm wholly or partly, or may modify any decision, determination or requirement of the Zoning Committee, and may make such decision or determination or may impose such conditions as the facts warrant, and may grant a variance or exception, and its decision or determination shall be final." (Italics added.)
Applying the foregoing rule of law to the facts of the instant case, it is evident that, since mandamus will not lie to review the finding of a local board or officer whose finding is by statute or ordinance made final, in the absence of a showing of abuse of discretion on the part of the board, and since in the present case the finding of the Board of Directors upon appeal from a decision of the zoning committee was made final by ordinance and there is no showing that the zoning committee abused its discretion, as the facts proved were susceptible of more than one conclusion, the trial court was in error in issuing the writ of mandate herein.
For the foregoing reasons the judgment appealed from is reversed.
I concur: WOOD, J.
MOORE, Presiding Justice (concurring).
I concur in the judgment but I dissent from the majority view that mandamus is not a proper remedy, in the absence of abuse of discretion for reviewing the finding of a local board vested with discretionary power by statute or ordinance to render a final decision. If the opinion means that the courts will not review the proceedings unless the petition alleges abuse of discretion, to that extent it is correct. But if it is intended that the writ will not be granted if the evidence fails to establish abuse of discretion, then it must be acknowledged that the remedy were necessarily exercised, otherwise the demonstration of an abuse of discretion could not have been made.
But abuse of discretion is not the only justifiable basis for the exercise of mandamus against a board vested with powers for final decision. It is readily conceivable that a board might have heard with patience all of the evidence presented and might have searched vainly for precedent for its guidance, and though it be free from fraud, caprice and arbitrary disregard for the petitioner’s rights, yet it may have violated a fundamental right by virtue of following the very statutory language which created it and endowed it with said powers. Constitutional safeguards furnish us security in the enjoyment of property rights, of life, and of liberty, and when any of these through inadvertence or innocence on the part of a board is disregarded, the courts will, by the exercise of the writ of mandate, correct such misjudgments of an administrative board. To announce that the courts shall not review the proceedings of a board after it has ignored a right guaranteed by the federal Constitution would mean that one so aggrieved would be without a remedy. Of course, if the alternative writ were never issued because of the failuse of the petition to allege the board’s abuse of discretion, or its refusal to act, or its denial of a constitutional right, no trial could occur. But where the petition alleges the deprivation of rights by reason of either an abuse of discretion in making a finding of fact or of the denial of a constitutional guarantee, then, a judicial inquiry is demanded and the trial court must hear the cause to determine whether the finding is justified or the petitioner has been denied a constitutional right.
Moreover, if a petition were presented showing that an administrative board had made a determination without evidence, or had refused to hear legal evidence, or had chosen to act upon hearsay as against direct and conclusive evidence or had ignored a constitutional guarantee, surely the court would be required to try the issue de novo and to enter a judgment on the findings made, and the fact that the statute creating the board made its determination final, would add no virtue to its decision. Thus, when a petition shows that an administrative board has made a prejudicial determination because of its ignorance of constitutional guarantees, the alternative writ must issue, a trial must be had and findings and decision must be made. If petitioner prevails, the writ will issue compelling the board to grant the relief requested, unless an appeal be taken. If an appeal be taken, it then becomes the duty of the appellate court to review the proceedings, as in the case of all other appeals from judgments of the trial court.
The writ of mandate had its origin in the necessities of supplying defects in the processes of justice where no other remedy was available. 16 Cal.Jur. 764. It is the only writ by which the acts of inferior tribunals and administrative boards may be brought for review before the courts for the reason that the writ of certiorari is appropriate only for the purpose of reviewing acts of a board exercising judicial power (Standard Oil Co. v. State Board of Equalization, 6 Cal.2d 557, 59 P.2d 119) and the use of prohibition is confined to the restraint of threatened exercise of judicial power in excess of jurisdiction. Whitten v. State Board of Optometry, 8 Cal.2d 444, 65 P.2d 1296, 115 A.L.R. 1.
Since "no person shall be *** deprived of life, liberty, or property, without due process" (Const. of the United States, amendts. V and XIV, U.S.C.A.), a complaint that due process has been denied by the determination of an administrative board impels the court to grant a hearing upon the issues tried by the administrative board and entitles the complainant to a trial de novo. Drummey v. State Board of Funeral Directors, 13 Cal.2d 75, 87 P.2d 848. To hold that the decisions of administrative boards are conclusive even though the petition alleges the denial of a right or the abuse of discretion, would place the constitutional rights of a citizen at the mercy of the administrative officials and seriously impair the security inherent in our constitutional safeguards. "Under our system there is no warrant for the view that the judicial power of a competent court can be circumscribed by any legislative arrangement designed to give effect to administrative action going beyond the limits of constitutional authority." St. Joseph Stock Yards v. United States, 298 U.S. 38, 56 S.Ct. 720, 726, 80 L.Ed. 1033; Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598.
Not only are the courts required, under appropriate allegations, to review the proceedings of administrative boards when constitutional rights have been invaded by the determination of the administrative board but if the court does not exercise an independent judgment on the facts as well as on the law, the party adversely affected as to his constitutional rights is deprived of due process. Drummey v. State Board of Funeral Directors, supra. At the same time, it must be remembered that although the court is required in a mandate proceeding where constitutional rights are in issue to try the case de novo, it must be assisted in all cases by the findings of the administrative board. While such findings are not conclusive they come "with a strong presumption of their correctness, and the burden rests upon the complainant to convince the court that the board’s decision is contrary to the weight of the evidence". Drummery v. State Board of Funeral Directors, 13 Cal.2d 75, 87 P.2d 854. St. Joseph Stock. Yards v. United States, supra.
Upon the facts of the petition in the instant case, the court was required to hear the evidence de novo in order to determine whether discretion had been abused or a property right of the petitioner’s had been confiscated. Upon a review of the entire case, it appears that the administrative board, in the proper exercise of its powers, denied the application of petitioner for a variance of the zoning ordinance in so far as it affected the lot which he purchased within the zoned area in 1925. That area including his lot was already zoned to residential uses then as it is now. In the exercise of their judgment, they determined that such variance would be detrimental to the public health, comfort, peace and welfare and that the alleged extraordinary conditions recited by the petitioner were insufficient to warrant the variance. No facts were introduced before the trial court that would warrant the substitution by the court of its opinion for the decision of the defendant Board of Directors. The entire record is devoid of any content calculated to indicate that the petitioner was denied a full hearing and the same treatment accorded to all persons presenting similar applications.
The power to vary the zoning ordinance should be exercised sparingly. Prusik v. Board of Appeals etc., 262 Mass. 451, 160 N.E. 312. One buying in a district zoned to residential uses cannot be heard to complain of small profits from the permitted use. Home for Hebrew Infants of City of New York v. Walsh, 131 Misc. 581, 227 N.Y.S. 570. Whether one’s property is more suitable for a purpose other than that permitted is immaterial. Stillman v. Board of Standards and Appeals, 222 A.D. 19, 225 N.Y.S. 402, affirmed 247 N.Y. 599, 161 N.E. 197. Where the administrative board granted a variance solely because of the owner’s inability to rent his property as a residence, even though it had no rental value at all, the board’s decision should be reversed. Phillips v. Board of Appeals, 286 Mass. 469, 190 N.E. 601. In the case of Blake v. Zoning Board of Appeals, 117 Conn. 527, 169 A. 195, said board had denied the permit to operate a parking lot in a business zone. Although the court after trial reversed the order of the zoning board, the supreme court of Connecticut reversed the judgment and approved the action of the zoning board on the ground that the board had properly exercised its discretion in refusing the request. I am satisfied that the judgment should be reversed but I think the proceedings of the trial court should have been reviewed as any other record customarily presented there and reviewed here. The judgment should be reversed upon the ground that the superior court was not justified in annulling the decision of the Board of Directors of Pasadena for the reasons that said board was not actuated by fraud or caprice or by arbitrary impulse against petitioners or their rights and did not violate any constitutional right of petitioners with respect to their said property.