Belli v. Board of Supervisors

SPENCE, J.

Petitioners herein seek to' review the action of the respondent board in hearing and determining an appeal in a rezoning proceeding.

Petitioners had protested before the city planning commission against the granting of an application to change a piece of property belonging to Mrs. Jennie Jones from the second residential district to the commercial district. The commission took the application under advisement and thereafter failed to act thereon. The charter of the city and county of San Francisco in effect at that time provided that, “The failure of the commission to act within ninety days . . . shall be deemed and be approval of such classification by the commission.” (Art. XVIII, sec. 4, San Francisco City Charter, Stats. 1929, p. 2020.) After the expiration of ninety days an appeal was taken to the respondent board by some of those who had protested against the granting of the application by the commission. Petitioners herein filed their written objections to the hearing of the appeal by the respondent board upon the ground that the approval of the application by the commission resulting under the terms of the charter from the failure of the commission to act was void, as the “mayor of said city and county was not notified of said action nor afforded an opportunity to approve or disapprove the same”. Petitioners sought to restrain and prohibit respondents from hearing and determining said appeal by

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applying for a writ of prohibition in the superior court, but. said application was denied. An appeal was taken from the judgment of the superior court; which appeal is now pending. The questions involved on that appeal have become moot, as the respondent board has since acted on the appeal in the zoning proceeding. Said board by 9 to 5 vote refused passage to a resolution, which resolution had for its purpose the disapproval of the granting of the application to rezone the property. Said proposed resolution which was refused passage by the respondent board was certified to the' mayor, who took no action thereon. The appeal to the respondent board was thereby lost and the result of the proceedings was to effect a rezoning of the property unless the proceedings before the commission were void for the reasons urged by petitioners.

The provisions of article XVIII, section 5, of the charter of the City and County of San Francisco (Stats. 1929, p. 2020), then in effect, read in part as follows: "Every resolution of the City Planning Commission and every ordinance of the Board of Supervisors which shall be adopted or passed relative to the subject-matter of the article shall be presented to the Mayor for his approval. The Mayor shall return such resolution or ordinance to the City Planning Commission or Board of Supervisors, respectively, within ten days after receiving it. If he approves it he shall sign it and it shall thereupon become effective unless an appeal to the Board of Supervisors is pending. If such an appeal is pending, the approval by the Mayor shall not result in rendering such-resolution or ordinance effective. If he disapproves it he shall specify his objections thereto in writing. If he does not return it with such disapproval within the time above specified it shall take effect as if. he had approved it, unless an appeal to the Board of Supervisors is pending. . . . ”