Dunham v. City of Westminster

This is an appeal from a judgment ordering the issuance of a peremptory writ of mandate to compel the issuance of a building permit.

Pacts

The essential facts are not in dispute. Respondent owns a building lot fronting on Westminster Avenue in the City of Westminster in an area zoned by the city ordinance as “C-2,” which is for general business purposes. Section 8200.20(C).26 of the city’s planning and zoning regulation provides in substance that no permit shall be issued in zones C-l, C-2, M-l, M-2, M-3, R-2 and R-3 for construction of a building on the land which abuts on any street shown on the city’s official highway map adopted August 17, 1959, until and unless the right-of-way for such street to the width shown on the official map has been dedicated to the city and improved by paving, curbs, gutters and street drainage and an agreement therefor has been executed by the owners. Provision is made in the ordinance for the granting of variances from the requirements of this section, (a) under special circumstances not applying generally to other property in the neighborhood; (b) where necessary for the preservation and enjoyment of substantial property rights; (c) where the property development will not be materially detrimental to the neighborhood; (d) where the variances will not adversely affect any Master or Precise plan.

See note 1 for copy of section 8200.20(C).26.

The cause was tried at length and the trial court found the ordinance to be unconstitutional and ordered the issuance of a writ of mandate to compel the granting of a building permit. Because of our conclusion that respondents did not exhaust their administrative remedy in that they refused to apply for a variance, the details of the evidence are not here recited.

Exhaustion of Administrative Remedy a Prerequisite to Judicial Relief

Appellants contend, and we are forced to agree, that the refusal of respondents to apply for a variance as provided by the ordinance foreclosed them from invoking judicial relief.

Nearly 60 years ago in United States v. Sing Tuck, 194 U.S. 161 [ 24 S.Ct. 621 , 48 L.Ed. 917 ] the United States Supreme Court recognized the necessity for orderly exhaustion of the administrative remedies before court intervention, even in a ease of habeas corpus challenging constitutionality. Since that time, the number of new administrative processes rapidly increased under the pressure of tremendous advances in science and technology and consequent complications in adjustment of the social order. The courts, in order to avoid being completely swamped by attempts to challenge administrative steps in their preliminary phases, have, with some wavering, it is true, been forced to adhere with more and more insistence, to the principle of exhaustion of administrative process. The problem still has many perplexing aspects and not infrequently courts have seen fit to make apparent exceptions. (Reeber v. Rossell, 91 F.Supp. 108 ; Parker v. Lester, 227 F.2d 708 .) It has also happened on a few occasions, that decisions have been made where the question could apparently have been raised and was ignored and must therefore be deemed not to have been before the court.

“It is now firmly established in this state that a litigant must invoke and exhaust an administrative remedy provided by statute before he may resort to the courts. Jurisdiction to entertain an action for judicial relief is conditioned upon a completion of the administrative procedure. (Citation.) In the present case, the persons who are the plaintiffs in the injunction proceeding invoked the administrative process to secure a review of the challenged order and, at practically the same time, sought judicial relief. The respondents apparently contend that the requirement of exhaustion of administrative remedies applies only to erroneous orders and does not preclude judicial interference where, as here, an order is assailed as a nullity because illegally adopted and where the agents for enforcement appointed thereunder are charged with being mere pretenders claiming powers which they do not lawfully possess. But there is no substantial difference, insofar as the necessity for resort to administrative review is concerned, between an erroneous order and one which, it is claimed, is being executed in violation of statutory authority.

‘ ‘ Conceding the existence of such a distinction, however, the doctrine of exhaustion of administrative remedies is not so limited. For example, it lies within the power of the administrative agency to determine in the first instance, and before judicial relief may be obtained, whether a given controversy falls within the statutory grant of jurisdiction. (Citations.) And even where the statute sought to be applied and enforced by the administrative agency is challenged upon constitutional grounds, completion of the administrative remedy has been held to be a prerequisite to equitable relief. ’ ’

See also Abelleira v. District Court of Appeal, 17 Cal.2d 280 , 292 [6] [ 109 P.2d 942 , 132 A.L.R. 715 ]; Metcalf v. County of Los Angeles, 24 Cal.2d 267 , 269 [1] [ 148 P.2d 645 ] ; City of Susanville v. Lee C. Hess Co., 45 Cal.2d 684 , 689 [1] [ 290 P.2d 520 ]; City of Chico v. First Ave. Baptist Church, 108 Cal.App.2d 297 , 301 [3] [ 238 P.2d 587 ] ; Banville v. County of Los Angeles, 180 Cal.App.2d 563 , 570, 571 [1-6] [ 4 Cal.Rptr. 458 ] ; 48 Yale L.J. 981 , 992.) The rule of exhaustion of administrative remedy applies even though

Prom the foregoing it is clear that the evidence and questions relating to uneonstitutionality are not properly before us.

The judgment is reversed.

Griffin, P. J., and Coughlin, J., concurred.

A petition for a rehearing was denied May 1, 1962, and respondents’ petition for a hearing by the Supreme Court was denied May 29, 1962.