Goldman v. County of Santa Barbara

THE COURT.

This is an appeal from a judgment of dismissal after demurrers to the appellants’ original pleading (entitled “Petition for Alternative Writ of Mandate and Complaint for Declaratory Relief”) had been sustained without leave to amend. The demurrers were interposed on behalf of the respondents, the Board of Supervisors and the Planning Commission of the County of Santa Barbara.

No controversy of the nature appropriate in an action for ,declaratory relief was pleaded. (See 2 Chadbourn, Grossman & Van Alstyne, California Pleading, § 1085.) The plaintiff sought to compel the board and the commission to refrain from taking further action under certain zoning ordinances of the county pursuant to which the development as a shopping center of a 10-acre parcel of land adjacent to the appellants’ residential property was contemplated. Such ordinances were

[456]

asserted to be invalid. After the filing of the notice of appeal, the appellants sold their property. Consequently, the question to be determined prior to any consideration of the appeal on its merits is whether the matter has now become moot.

The appellants contend that the questions raised are not moot because the action does not relate solely to the particular parcel of land described in their pleading but is in the nature of a class or representative action. Moreover, they assert that Frank B. Malinowski, who has resided on property owned by him within 200 feet of their former residence since a time prior to the institution of the proceeding, relied on their action for the protection of his interests and should 'now be allowed to intervene therein. They also claim that, as owners of another parcel of land, not mentioned in their pleading, which is approximately 3 miles away from the proposed shopping center, they are aggrieved by the kind of zoning permitted under the ordinances which they attack. The nature of that property and of the particular zoning with respect thereto is not disclosed. Finally, they assert that as taxpayers they have a right to bring an action against public officials for illegal use or expenditures of public funds “in enforcing and regulating the zoning ordinances here in ques[tion.”

It is manifest that if the action must be considered as one brought by the appellants solely for the protection of their residential property particularly described in the complaint, which was adjacent to the proposed commercial development, as we think it must be,