Kling v. City Council of City of Newport Beach

BARNARD, P. J.

This is an appeal from a judgment denying the appellants’ application for a writ of mandate ordering the city council of Newport Beach to approve a proposed subdivision.

The appellants are the owners of Lot 140 in a tract known as “Shore Cliff” tract. There are 142 lots in this tract, of which 138 lots are subject to a tract restriction providing that

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only one single family residence may be situated upon each lot. Four lots, including Lot 140 were specifically excepted from that restriction. These four lots form the northerly end of the tract, and face the state highway on one side. Lot 140 is somewhat triangular in shape and lies between the state highway on the north, a curved street on the south, another street on the west, and Lot 141 on the east. This lot contains about 25,000 square feet and is much wider in its western portion than at the easterly end. The appellants’ home is located upon the westerly portion of this lot and they desire to sell the vacant easterly portion of the lot, thus dividing the lot into two separate parcels or building sites. The proposed subdivision would leave about 12,000 square feet in appellants’ home site and put about 13,000 square feet in the new lot to be sold. The maps indicate that this new lot would have a street frontage of something over 300 feet and a depth at its westerly end of something over 100 feet. The great majority of the lots in this tract have a street frontage of from 40 to 70 feet. While some of the lots in this tract are larger than either of the proposed new lots, most of them are smaller in area.

The appellants’ land is located in an “R-1B” area as set forth in a zoning ordinance adopted by this charter city in December, 1950. This ordinance requires, in an R-1B area, that there shall be no more than one single family dwelling on any one building site; that each building site shall have a minimum of 6,000 square feet, with a minimum width of 60 feet; and that certain requirements as to front, rear and side yards be complied with.

Article IX-% of the Municipal Code of Newport Beach regulates the subdivision of lands within the city and prescribes rules and procedure for the obtaining of permits to subdivide such lands, and it was enacted as Ordinance 650 in October, 1951. This ordinance provides that the planning commission shall determine whether the tentative map conforms to the provisions of law and of this article, and “upon that basis” approve, conditionally approve or disapprove the same. It then provides that the planning commission shall report its action to the subdivider and to the city, and that the city council shall then consider said map and the plan of subdivision. It then provides, insofar as material here, ‘ ‘ If the City Council shall determine that said map is in conformity with the requirements of this Article and that it is satisfied with the plan of subdivision, it shall approve said