Johanson v. City Council

DEVINE, J.

The City Council of the City of Santa Cruz appeals from a judgment in a mandate proceeding commanding the council to take all steps required to rescind a vote of the council refusing to reclassify respondent’s property for zoning purposes and to take all steps required to make effective, by ordinance, the reclassification requested by respondent.

Johanson, respondent, applied to the city planning commission to have 22 parcels of land rezoned from R-2, two-family dwelling district, to R-4, general apartment district. The planning commission recommended, by resolution, that the city council deny the application. The city council duly noticed a meeting date for hearing. At the meeting, on May 22, 1962, two of the seven members of the council were absent and one was disqualified. The planning commission’s recom

[70]

mendation was read and considered and voted upon. The votes were one “aye,” three “no.” Thereupon, a councilman moved that the city attorney prepare an ordinance to change the zone; the motion was seconded and carried unanimously.

At the next regular meeting of the city council, the ordinance which had been prepared by the city attorney was presented for publication. Motion for adoption was made and seconded, but was defeated three to one. At this meeting, the two councilmen who had been absent from the earlier meeting voted “no,” joining the councilman who, at the first vote of the earlier meeting, had voted unfavorably to reclassification. Two who had been favorable to respondent at the earlier meeting were absent.

Respondent contends that the action of the council on May 22, 1962, was a complete expression of the legislative will in favor of the reclassification and that nothing more than ministerial action remained. Appellant contends that the only action done at the meeting was the defeat of the planning commission’s recommendation and the direction to the city attorney to prepare an ordinance. The ordinance, however, says appellant, was never adopted.

The pertinent provisions of the charter of the City of Santa Cruz (Stats. 1948, ch. 49, pp. 316, 317) are: Section 608: “No ordinance shall be finally adopted by the Council on the day of its introduction, nor within five days thereafter, nor at any time other than a regular meeting, nor until its publication at least once in the official newspaper of the City at least three days before its adoption. ...” Section 613: “The City Clerk shall cause each ordinance to be published at least once in the official newspaper at least three days before its adoption. ’ ’