Riggs v. City of Oxnard

Opinion

Appellant, W. Patrick Riggs, owner of an Aamco transmission business, appeals from a denial of a writ of mandate. The petition for a writ sought to require respondent, City of Oxnard, to issue a criminal citation and to order a civil injunction against Ben and Sherry Zolfaghari, owners of Oxnard Transmission, because their business operation was in violation of an existing City of Oxnard zoning ordinance. We uphold the trial court’s denial of the writ, and affirm the judgment.

Facts

In June 1982 Ben and Sherry Zolfaghari (hereinafter referred to as Zolfaghari) began their Oxnard Transmission business after respondent, City of Oxnard, erroneously approved the zone clearance. The Zolfagharis quit their prior jobs and spent substantial sums of money (over $37,000) to commence their new business.

Oxnard Transmission is located in a C-2 zone. Ordinance No. 1706, section 34-79 of the Code of the City of Oxnard, sets forth uses of land permitted in the C-2 zone. Section 34-79.1 of that code specifically excluded transmission installation in a C-2 zone.

However, this court will address appellant’s argument that a writ of mandamus will lie when an individual taxpayer or property owner seeks to enforce a clear public duty. (Hollman v. Warren (1948) 32 Cal.2d 351 [ 196 P.2d 562 ]; Bd. of Soc. Welfare Authority v. County of L. A. (1945) 27 Cal.2d 98 [ 162 Cal.Rptr. 627 ].) In the instant case respondent did enforce the zoning ordinance and the means to enforcing that ordinance was within the discretionary power of the respondent. A writ of mandate will not issue to compel that discretion be exercised in a particular way. (Faulkner v. Cal. Toll Bridge Authority (1953) 40 Cal.2d 317 [ 253 P.2d 659 ]; Lindell Co. v. Board of Permit Appeals (1943) 23 Cal.2d 303 [ 144 P.2d 4 ].) Further, it is not the function of the court to challenge the municipality’s policy and wisdom. “The function of the courts is to determine whether or not the municipal bodies acted within the limits of their power and discretion.” (Wheeler v. Gregg (1949) 90 Cal.App.2d 348 , 361 [ 203 P.2d 37 ].)

The appellant urges that a zoning violation imposes a duty upon the respondent to issue a criminal citation and enjoin the continued use of the property. This court has, however, determined that the respondent had the discretionary power to seek the alternative remedies of an amendment to the ordinance, or a termination of the land use by Zolfaghari within a reasonable time.

The source of this discretionary power is three fold: 1) the plain meaning of the statute establishes that the city may use discretion in enforcement, 2) the police power that gives the municipality authority to establish zoning ordinances in the first place also allows the municipality to change that zoning, and 3) where the city may be estopped from enforcement of a zoning ordinance, or faces an action for damages, it is required to exercise discretion.

Ordinance No. 1506 of the City of Oxnard states that a violation of a license or permit condition granted pursuant to chapter 34 (zoning) “may be prosecuted as a violation of the Code of the City of Oxnard pursuant to Section 1-10. ” The language of the statute is clear in that it does not require prosecution for a violation, but uses the word “may,” thereby allowing the city discretion to make such a determination. The respondent city is not, therefore, mandated to issue a criminal citation for a zoning violation, but may logically resolve a violation in other ways, as it did in this case.

Zoning is a function of the police power of the state. Zoning does not mean permanent regulation. “Extensions, curtailments and modi

Finally, the respondent is required to exercise discretion when he is faced with litigation that may result in estoppel of enforcement of the ordinance, or a suit for damages. In Anderson v. City of La Mesa (1981) 118 Cal.App.3d 657 [ 173 Cal.Rptr. 572 ], the appellant city had denied the respondent an occupancy permit for a home the respondent had constructed in conformity with a building permit issued by the city. The city had inspected the home six times during construction. After completion, the city maintained the house had to be set back at least ten feet from the lot lines, not the five feet required on the permit. The court held that there was a proper application of estoppel against the city, since the property owner would face substantial harm without an appropriate remedy. The trial court found, and the appellate court confirmed, that the city had abused its discretion by denying a variance. The principles of estoppel and the subsequent requirement that the appellant city use discretion to protect the respondent, who relied on appellant, from substantial harm are in force in the case at bar. The respondent must act within its power to offer a remedy to Zolfaghari.

Respondent has not acted in an arbitrary, capricious or unreasonable manner and therefore has not abused its discretion. (City of Los Angeles v. Gage (1954) 127 Cal.App.2d 442 , 453 [ 274 P.2d 34 ]; Wheeler v. Gregg, supra, 90 Cal.App.2d 348 , 368.) On the contrary, respondent sought to amend the zoning ordinance to allow a use of the land which was apparently reasonable since appellant had been operating a transmission shop in a C-2 zone across the street from Zolfaghari since 1968 (subject to a variance). If appellant had decided to remain on that C-2 property rather than move away, he could also have sought a special use permit.

The judgment is affirmed.

Abbe, J., and Gilbert, J., concurred.