Tandy v. City of Oakland

SALSMAN, J.

Plaintiffs appeal from a judgment entered after the court sustained a demurrer to an amended complaint without leave to amend further.

In their complaint plaintiffs asked for a writ of mandate to compel the defendant city to rezone their property from “C” multiple dwelling to “E” commercial. They also sought declaratory relief, contending that the zoning ordinances of the City of Oakland are unconstitutional as applied to their property.

The complaint alleged in substance that plaintiffs owned a lot improved with a two flat building built about 1910; that the building had deteriorated with age and had become obsolete; that it was located in a neighborhood composed of like structures in varying degrees of obsolescence; that the cost of maintenance of the building is in excess of rental income ; that it is not financially practicable to repair or reconstruct the building because no reasonable income could be obtained on the cost of reconstruction; that the only practical use to which the property can be devoted is a commercial use, which would harm no one and would be a benefit to the neighborhood; that plaintiffs made application to the city council to have the property rezoned, but such application was denied.

We consider first plaintiffs’ request for the writ of mandate to compel the city council to rezone their property. It is long settled law that the enactment of a zoning ordinance is purely a legislative act and a governmental function. It is to be distinguished from the granting or denial of a variance, a conditional use permit or an exception to use, all of which call for administrative action, and none of which is involved here because the complaint alleges and the demurrer admits that plaintiffs have exhausted their administrative remedies. Thus, the complaint simply asks the court to issue the writ to compel the city council of the defendant city to perform a legislative act, namely, to pass an ordinance according to plaintiffs’ plan, rezoning their property from “C” multiple dwelling to “E” commercial. It is elementary that the courts have no such power. “ The determination of whether or not to enact a zoning ordinance and the determination of its provisions and terms are entirely

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within the discretion of the municipal legislative body or other zoning legislative authority, subject to such requirements as may exist relative to study and recommendation by zoning commissions, notices, hearings and initiative and referendum. Such municipal discretion will not be interfered with by the courts except for clear abuse of the discretion or excess of power, and in ease of doubt or if the question is fairly debatable, a court cannot substitute its judgment for that of the municipality. In other words, a municipal corporation has a right to determine whether conditions or the public interests demand an exercise of the power to pass a zoning ordinance and to select the measures that are necessary for that purpose. A fortiori, the wisdom or good policy of a zoning ordinance is for a municipality to determine and the courts have nothing to do with it.” (8 McQuillin, Municipal Corporations, (3d ed. rev.) pp. 119-122.)