Silva v. City of Cypress

SHEPARD, Acting P. J.

This is an appeal from a judgment denying a writ of mandate.

Facts

Walter Kuppens,and Mary Kuppens applied to the City of Cypress or a variance to huild and operate a drive-in theater in said city, in an area zoned partly A-2 (heavy agricultural) and M-l (light industrial). In accord with the city ordinance the application was made to the city planning commission. The ordinance provides that if the planning commission deems it necessary, it may hold a public hearing thereon and shall, not less than five days prior to such hearing, mail a notice of the time and place of such hearing to all property owners owning property within 300 feet of the property for which variance is petitioned, ownership to be taken from the county tax roll or as known to the clerk. If on the hearing the planning commission finds that practical difficulty, unnecessary hardships or results inconsistent with the general purpose and intent of the ordinance will occur through the

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strict application of the regulations and that material detriment to the neighborhood will not result from issue of the variance permit it may recommend approval and transmit same with its findings to the city council with recommended conditions.

The planning commission gave notice of hearing on Kuppens’ petition by mailing to all property owners owning property within the city within 300 feet of the subject property, but gave no notice to any owners outside the city. Some land lies within 300 feet outside the city. The planning commission held the hearing, recommended approval with conditions, and the city council granted the variance. No notice of the council’s consideration of the variance is required by the ordinance and none was given.

Appellant herein petitioned the superior court for a writ of mandate to compel the city council to desist from issuance of the variance permit on the ground,

inter alia,

that lawful notice of hearing was not given. A temporary restraining order was issued. Both city and Kuppens appeared and pointed out,

inter alia,

that the petitioner had made no allegation showing that he was aggrieved and that therefore petitioner had no standing in court. A hearing was had, the trial court found against the petitioner, dismissed the writ, and appeal followed.