Silvera v. City of South Lake Tahoe

Opinión

PIERCE, P. J.

The trial court granted defendants’ motion for summary judgment. Plaintiffs appeal from a judgment dismissing their complaint for injunctive and declaratory relief.

Plaintiffs contend that two ordinances of defendant city, passed under the emergency provisions of Government Code section 65858, are not of the type authorized by that section, in that they temporarily change the zoning law by enlarging rather than restricting the number of uses permitted. We will hold that section 65858 which we quote in the margin

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was violated and that summary judgment must be reversed.

[556]

Facts

The six appellants and respondent Daniel Kerr are neighboring landowners in a certain area of respondent city. Prior to June 18, 1968, the city’s zoning ordinance for that area contained a maximum height limit of 50 feet and also certain requirements respecting set backs. Kerr, then a new owner, applied to the city planning commission for a variance. On April 3, 1968, it was denied. An appeal was taken to the city council. When the city attorney pointed out there was no legal ground for a variance because the city could not make a finding that the property was being deprived “of privileges enjoyed by other property in the vicinity and under identical zoning classification,” the variance was denied. The city, however, then proceeded to adopt the first of the two ordinances now challenged. (No. 164.) By its terms construction of a building at a height in excess of that permitted by the existing ordinance (and nonconforming in other respects) was allowed. By its terms the ordinance expired in 90 days. However, a reaffirming ordinance (No. 165) was adopted thereafter. Later a building permit was issued. This action was filed October 2, 1968.

Validity of the Two Ordinances

The statutory scheme for the adoption by California cities of zoning ordinances is embraced in Government Code sections 65850-65861.

A reading of these sections will suffice to show that the process of adopting plans for future zoning development of a city is time consuming. Lengthy studies by a planning commission (or in a city which does not have such a commission by the council itself) may be necessary. There must be a public notice and a hearing, and the adopted ordinance must be published (Gov. Code, §§ 65854, 65855, 65856, 65857.) The ordinances involved in the case before us are admittedly invalid unless they fall within the category of “interim” or “emergency” ordinances authorized by section 65858 (see fn. 1). That they do not, would seem axiomatic. There is nothing in the nature of an “urgency,” or which could be characterized as an “interim” use, or as “prohibiting . . .