Rasmussen v. County of Orange

MONROE, J. pro tem.* The petitioner sought a writ of mandate in this proceeding and upon a denial thereof this appeal was taken.

It appears that petitioners owned a parcel of real property in an unincorporated area of Orange County. The property is zoned under the county zoning ordinance. In 1955 petitioners sought a building permit from the county in order to construct a garage building upon their property. This permit was granted upon condition, however, that the building be set back an additional 30 feet from the previously established setback. This requirement was complied with.

Petitioners desired to establish some sort of living quarters upon the property and by reason of the additional setback there was not sufficient room to construct a building. They therefore sought a zone variance to permit them to occupy a mobile home on the rear of their property. Such a variance was granted in 1956 and additional variances for. yearly periods were granted thereafter until 1960, when the variance was limited to a period of six months. In 1961 an application was presented to the Orange County Planning Commission for an additional variance.

The application for variance was heard on February 21, 1961 and was denied by the planning commission. Pursuant to the provisions of the ordinance, an appeal was taken to the board of supervisors and a hearing was had on March 22, 1961, when the application was again denied. This proceeding followed.

Attention is called to the fact that at both of the foregoing hearings the petitioners presented a volume of testimony in favor of their application and that no testimony was offered [248]in contradiction thereof. Both the planning commission and the board of supervisors denied the application without any express findings. The petitioners contend that these facts present a situation where the court can and should hold that denial of the petition constituted an abuse of discretion and that the court should, by mandamus, compel the granting of the petition.

In considering the problem here presented, it must be recollected that there is not involved in this proceeding any question of the validity or reasonableness of the zoning ordinance. The property of petitioners is subject to that ordinance and the use of that property is controlled by that ordinance unless the ordinance be found invalid in a proper proceeding or unless a variance be granted. The learned trial judge, basing his decision upon Rubin v. Board of Directors, 16 Cal.2d 119 [104 P.2d 1041], held that the granting or refusal of a permit was a matter of grace rather than a matter of right. In the Bubin case the court stated at page 124: