Smith v. City of Duarte

FOX, P. J.

This is an appeal from a judgment dismissing plaintiffs’ case, without prejudice, for lack of jurisdiction. The decisive question herein is whether the trial court was correct in this decision, which was made on the ground that plaintiffs had failed to exhaust the administrative remedies available to them.

On March 24, 1962, the City Council of Duarte enacted Ordinance No. 95, a comprehensive zoning ordinance for the city. In April a referendum petition was circulated and filed which attacked, among other things, a setback line of 20 feet on C-2 and C-4 property which was established by Ordinance No. 95. The city council, pursuant to this referendum, enacted on May 28 Ordinance No. 101 which repealed such setback requirements. About a month and a half later the city council enacted a new Ordinance, No. 102, which amended Ordinance No. 95 by adding to it new setback requirements on C-2 and C-4 property, to wit: a setback of 25 feet on property with a frontage less than 200 feet, 50 feet on property with a frontage of 200 feet or more.

Plaintiffs, whose property is zoned C-2 and C-4, filed a complaint seeking to enjoin the enforcement of Ordinance No. 102. Their claim is that the new setbacks are similar to the requirements repealed by Ordinance No. 101 pursuant to the referendum, and that therefore Ordinance No. 102 is unconstitutional and invalid because it violates article IV, section 1, of the California Constitution and section 4052 of the Elections Code.

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The original master zoning ordinance, which remained intact except for the portion repealed by Ordinance No. 101, provided specific methods whereby zoning variances could be applied for and obtained following a hearing and determination by a commission. Plaintiffs did not avail themselves of this procedure. The trial court upheld the city’s contention that plaintiffs could not resort to the courts until ■they had exhausted their administrative remedy, and ruled therefore that it had no jurisdiction to decide the questions

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involved. We have concluded that the trial court was correct in this decision.

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