Berkeley Crematory, Inc. v. City of El Cerrito

AGEE, J. pro tem.* This is an appeal by plaintiff from a judgment declaring that its property was validly rezoned from commercial to residential.

[266]The property involved is a parcel of land in the city of El Cerrito, consisting of 22 lots. This land was zoned commercial by Ordinance Number 125, adopted March 30, 1931. Section 10 of this' ordinance provides that: The city council may rezone any land zoned under the ordinance or all zones or otherwise alter and change the zoning, but first the city council shall give notice of the petition or proposal to rezone by the posting of written notices of the hearing thereon on the property to be-rezoned.

Zoning Ordinance Number 13 N.S. was adopted October 19, 1953. It expressly repealed Ordinance Number 125 and zoned appellant’s property as R-2 (residential). The city, respondent herein, admits that it did not post notice as provided in section 125.

Respondent’s position is that the requirement of posting in section 10 of Ordinance Number 125 applies only to an amendment of that ordinance; that Ordinance Number 13 N.S. is a new and precised section of a master plan adopted in accordance with the then existing statutes relating thereto, i.e., sections 65250-65254 of the Government Code*; that Ordinance Number 13 N.S. does not attempt to amend or revise Ordinance Number 125; and that sections 65250-65254, supra, do not require posting on the property.

The effect of the adoption of Ordinance Number 13 N.S. was to “alter and change the zoning” of appellant’s land. The plain purpose of section 10 of Ordinance Number 125 was to require notice by posting on the property before this could be done. This ordinance was in full force and effect until its repeal on October 19, 1953, by Ordinance Number 13 N.S. The requirement of notice by posting was not in conflict with any state law or, in particular, sections 65250-65254, supra. It simply required a form of notice in addition to the published notice provided for by section 65253, supra. We conclude that respondent was required to comply with section 10 of Ordinance Number 125 as a part of the legal proceedings leading up to the adoption of Ordinance Number 13 N.S. and that its failure to do so renders Ordinance No. 13 N.S. void as to appellant’s land insofar as it attempts to change its zoning.

The repeal of Ordinance Number 125 was an integral part of the adoption of Ordinance Number 13 N.S. We do not pass