ARNEL DEVELOPMENT COMPANY et al., Plaintiffs and Appellants, v. CITY OF COSTA MESA, Defendant and Respondent. SOUTH COAST PLAZA, Plaintiff and Appellant, v. CITY OF COSTA MESA, Defendant and Respondent.
L.A. No. 31205
Supreme Court of California
Dec. 18, 1980.
28 Cal. 3d 511
Rutan & Tucker, Leonard A. Hampel, Robert S. Bower, Latham & Watkins, Robert E. Currie and Robert K. Break for Plaintiffs and Appellants.
Robert Myers, John E. McDermott, Richard A. Rothschild, Crystal Sims, Michael E. Wine, Stearns, Kim & Willens, William N. Willens, Loring E. Jahnke, Richard J. Reynolds, Carlyle W. Hall, Jr., and Carolyn Burton as Amici Curiae on behalf of Plaintiffs and Appellants.
R. R. Campagna, City Attorney, Thomas C. Wood, Assistant City Attorney, and Mark J. Huebsch, Deputy City Attorney, for Defendant and Respondent.
George Deukmejian, Attorney General, E. Clement Shute, Jr., Assistant Attorney General, Daniel P. Selmi, Deputy Attorney General, George Agnost, City Attorney (San Francisco), Burk E. Delventhal, Diane L. Hermann, Alice Suet Yee Barkley, Deputy City Attorneys, John W. Scanlon, City Attorney (Hayward), Burt Pines, City Attorney (Los Angeles), Frederick W. Clough, City Attorney (Santa Barbara), Robert J. Logan, City Attorney (San Jose), Daniel J. Curtin, Jr., City Attorney (Walnut Creek), Carter J. Stroud, City Attorney (Alameda), Ronald A. Zumbrun, Thomas E. Hookano, Howard E. Susman, Frank Lee Crist, Jr., Crist, Crist, Griffiths, Bryant, Schulz & Biorn and Martin Wolff as Amici Curiae.
OPINION
TOBRINER, J.-Plaintiff Arnel proposed to construct a 50-acre development consisting of 127 single-family residences and 539 apartment
As we shall explain, California precedent has settled the principle that zoning ordinances, whatever the size of parcel affected, are legislative acts. We find no warrant for departing from that principle. A decision that some zoning ordinances, depending on the size and number of parcels affected and perhaps on other factors, are adjudicative acts would unsettle well established rules which govern the enactment of land use restrictions, creating confusion which would require years of litigation to resolve. Since such a decision is unnecessary to protect either the rights of the landowners or the public interest in orderly community planning and development, we adhere to established precedent and conclude, accordingly, that the ordinance rezoning plaintiffs’ property was a legislative act.
Our opinion therefore holds that the Court of Appeal erred in holding the initiative ordinance invalid on the ground that it is adjudicative in nature. Plaintiffs raised numerous other objections to the initiative, however, which were not resolved by the Court of Appeal and not fully argued before this court. Accordingly our order retransfers this cause to the Court of Appeal for resolution of those issues.
On July 18, 1977, the city approved development of the Arnel property and a tentative tract map. In its final form, the Arnel project was to consist of 127 single-family residences on approximately 23 acres and 539 apartment units on a similar acreage. Projected apartment rentals indicated that the project was intended primarily for moderate income housing.
Shortly after the city‘s approval of the Arnel development, the North Costa Mesa Homeowner‘s Association circulated an initiative petition to rezone the Arnel, South Coast Plaza, and Roberts properties to R-1 (single-family residential) zoning. At the municipal election of March 7, 1978, the voters adopted the initiative by a narrow majority.5
The city thereafter refused to process the final tract map or applications for building permits for the Arnel project. Arnel filed suit for mandate, injunctive relief, and declaratory relief. On the same day,
The trial court rejected the numerous contentions raised by the plaintiffs and rendered judgment upholding the validity of the initiative. The Court of Appeal reversed, holding that the rezoning of specific, relatively small parcels of private property is an act adjudicatory in nature, and therefore cannot be accomplished by initiative.6 We transferred the cause to this court for further consideration of that issue.
Numerous California cases have settled that the enactment of a measure which zones or rezones property is a legislative act. California courts have so held in cases permitting zoning by initiative (Associated Home Builders etc. Inc. v. City of Livermore (1976) 18 Cal.3d 582 [135 Cal.Rptr. 41, 557 P.2d 473, 92 A.L.R.3d 1038]; San Diego Bldg. Contractors Assn. v. City Council (1974) 13 Cal.3d 205 [118 Cal.Rptr. 146, 529 P.2d 570, 72 A.L.R.3d 973]; Bayless v. Limber (1972) 26 Cal.App.3d 463 [102 Cal.Rptr. 647]), in cases upholding zoning referendums (Johnston v. City of Claremont (1958) 49 Cal.2d 826 [323 P.2d 71]; Dwyer v. City Council (1927) 200 Cal. 505 [253 P. 932]), and in cases involving other issues which distinguish between adjudicative and legislative acts (Lockard v. City of Los Angeles (1949) 33 Cal.2d 453 [202 P.2d 38, 7 A.L.R.2d 990] (scope of judicial review); Toso v. City of Santa Barbara (1980) 101 Cal.App.3d 934 [162 Cal.Rptr. 210] (scope of judicial review); Ensign Bickford Realty Corp. v. City Council (1977) 68 Cal.App.3d 467 [137 Cal.Rptr. 304] (findings); Hilton v. Bd. of Supervisors (1970) 7 Cal.App.3d 708 [86 Cal.Rptr. 754] (sufficiency of evidence)).
The cases draw no distinctions based on the size of the area or the number of owners. Some of the cases involved measures which rezoned a substantial part of the city (e.g., San Diego Bldg. Contractors Assn. v. City Council, supra, 13 Cal.3d 205); some rezoned areas roughly comparable to the 68 acres at issue here (e.g., Lockard v. City of Los Angeles, supra, 33 Cal.2d 453); many involved parcels much smaller than 68 acres (Dwyer v. City Council, supra, 200 Cal. 505 (proposed site for poultry farm owned by University of California, said to constitute one five-hundred-fiftieth of the City of Berkeley); Toso v. City of Santa Barbara, supra, 101 Cal.App.3d 934 (single lot); Ensign Bickford Realty Corp. v. City Council, supra, 68 Cal.App.3d 467 (single lot); Hilton v. Bd. of Supervisors, supra, 7 Cal.App.3d 708 (5 acres); cf. Wheelright v. County of Marin (1970) 2 Cal.3d 448 [85 Cal.Rptr. 809, 467 P.2d 537] (location of subdivision access road a legislative act subject to referendum); Karlson v. City of Camarillo (1980) 100 Cal.App.3d 789 [161 Cal.Rptr. 260] (amendment to general plan a legislative act although it affects only 2 lots, of 10 and 14.75 acres)). Thus whatever the legal controversy and whatever the size or ownership of the land involved, every California decision on point (and there are many more than the few cited in this paragraph) has held that the enactment or amendment of a zoning ordinance is a legislative act.
Of the various cases cited, Dwyer v. City Council, supra, 200 Cal. 505, is the closest on point. The City of Berkeley rezoned a single small parcel owned by the University of California to permit operation of an experimental poultry farm. Plaintiffs petitioned for a referendum, and sought mandate to compel the city to submit the measure to the voters. Defendants argued that the referendum was improper because the measure rezoned only a small area and affected only persons living in the vicinity of the lot-essentially the same argument presented by the plaintiffs in the present case. Rejecting that argument, the court stated that “If the comprehensive zoning law districting all portions of the city were before us, it could not be successfully contended that the ordinance would not be subject to the referendum.... A zoning ordinance as amended becomes in effect a different ordinance. Even if it be granted that a reclassification of an area as small as that involved in the instant case cannot be said to effect a new scheme, the same rule must necessarily be followed as would be applied if a larger area had been reclassified, and it may be observed that a piecemeal rezoning of small areas may result in a plan differing in vital particulars from that originally contemplated. In view of the substantial interest which the electors of the entire municipality have in its zoning scheme, it cannot be held that because residents of the particular locality rezoned may be more immediately and apparently affected than are residents of other portions of the city, the broad initiative and referendum provisions of the charter and constitution do not apply to an amendment of the general zoning law which reclassifies a portion of the city‘s territory.” (200 Cal. at pp. 514-515.)
Johnston v. City of Claremont, supra, 49 Cal.2d 826, followed the same reasoning. “The amendment of a legislative act is itself a legisla-
Neither San Diego Bldg. Contractors Assn. v. City Council, supra, 13 Cal.3d 205, nor Horn v. County of Ventura (1979) 24 Cal.3d 605 [156 Cal.Rptr. 718, 596 P.2d 1134], points to a departure from the settled rule that rezoning is a legislative act. San Diego held that establishment of a 30-foot height limitation on buildings within a coastal zone was a zoning ordinance, and consequently a legislative measure which could be enacted by initiative. Although our opinion described the initiative as a “general” legislative act (13 Cal.3d at p. 212), we did so to distinguish the great number of more limited “administrative” zoning decisions, such as the grant of a variance or the award of a conditional use permit, which are adjudicatory in nature.” (Ibid.) The decision thus conforms to established rules that zoning amendments are legislative, but administrative decisions, such as variances and use permits, are adjudicative.
Horn v. County of Ventura, supra, 24 Cal.3d 605, held in conformity with prior decisions that approval of a tentative subdivision map was an adjudicative act.8 We did not arrive at that decision or conclude that
Plaintiffs suggest that the foregoing principle-that rezoning is a legislative act-operates in the present case to deny them due process of law under the United States and California Constitutions. Both federal and state precedent refute this contention.
In Eastlake v. Forest City Enterprises, Inc. (1976) 426 U.S. 668 [49 L.Ed.2d 132, 96 S.Ct. 2358], the United States Supreme Court rejected contentions identical to those urged by plaintiffs. There the City Council of Eastlake rezoned eight acres to permit construction of multifamily housing. The proposed zoning change, however, did not receive the approval of 55 percent of the voters as required by the Eastlake City Charter. Rejecting the Ohio Supreme Court‘s conclusion that the referendum requirement was an unconstitutional delegation of legislative power, the United States Supreme Court held the use of a referendum to bar a zoning change did not violate the due process clause of the Fourteenth Amendment.
A number of passages in the majority opinion of Chief Justice Burger bear closely on the present case. First, that opinion notes that the Ohio Supreme Court held that the rezoning of a single eight-acre parcel is a legislative act. (P. 673 [49 L.Ed.2d at P. 138].) The United States Supreme Court accepted that classification, citing in support two California decisions, Johnston v. City of Claremont, supra, 49 Cal.2d 826 and Dwyer v. City Council, supra, 200 Cal. 505 (p. 674 [49 L.Ed. 2d at p. 138]). Nowhere does the opinion suggest that the Ohio courts
Second, the Ohio court had expressed the fear that voters would not be able to apply land use standards fairly and consistently. The United States Supreme Court replied: “[T]here is no more advance assurance that a legislative body will act by conscientiously applying consistent standards than there is with respect to voters.... The critical constitutional inquiry, rather, is whether the zoning restriction produces arbitrary or capricious results.” (P. 676, fn. 10 [49 L.Ed.2d at p. 139].)
Finally, the dissenting opinion of Justice Stevens in Eastlake presented the argument that due process required a hearing for the rezoning of small parcels of property, and that the charter referendum requirement thus denied due process. The majority rejected that argument in a footnote. The court stated that: “[¶] The fears expressed in dissent rest on the proposition that the procedure at issue here is ‘fundamentally unfair’ to landowners; this fails to take into account the mechanisms for relief potentially available to property owners whose desired land use changes are rejected by the voters. First, if hardship is occasioned by zoning restrictions, administrative relief is potentially available. Indeed, the very purpose of ‘variances’ allowed by zoning officials is to avoid ‘practical difficulties and unnecessary hardship.’ 8E McQuillan, Municipal Corporations § 25.159, p. 511 (3d ed. 1965). As we noted ... remedies remain available under the Ohio Supreme Court‘s holding and provide a means to challenge unreasonable or arbitrary action. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).” (P. 679, fn. 13 [49 L.Ed. 2d at p. 141].)9
When we turn from the federal Constitution to the California Constitution, the force of precedent is even clearer. The California decisions cited previously in this opinion hold that amendment of a zoning ordinance is a legislative act (see cases cited pp. 516-517, ante) and consequently that zoning by initiative does not violate due process (San Diego Bldg. Contractors Assn. v. City Council, supra, 13 Cal.3d 205).
We can appreciate the view that in a case in which, unlike the present case, proposed legislation affects only a few persons, the legislative body should grant those persons a hearing if practicable. To elevate this precatory suggestion to a constitutional command, however, would radically constrain the power of legislative bodies. The rationale of our decision could not be confined to zoning cases; in San Diego we expressly denounced the claim that the Constitution provides more complete protection to ownership and development of real property than it provides to other personal rights. (13 Cal.3d at pp. 213-214.) Thus whenever a legislative body enacted legislation which affected relatively few persons, that legislation would be invalid unless the persons affected received notice and hearing before the enacting body. We find no warrant for such a radical curtailment of the authority traditionally enjoyed by legislatures.
We conclude that no constitutional requirement compels us to depart from the California doctrine that rezoning is a legislative act. We recognize, however, that the courts of some other states, basing their decisions on nonconstitutional grounds, have held that in some in-
From the doctrine that zoning ordinances are legislative, but variances and similar administrative decisions are adjudicative,11 derive a number of rules which facilitate the making of land use decisions and simplify litigation challenging those decisions. Among those rules are: (1) Zoning ordinances, but not administrative decisions, can be enacted by initiative (Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d 582). (2) Zoning ordinances, but not administrative decisions, are subject to referendum (Dwyer v. City Council, supra, 200 Cal. 505). (3) A zoning ordinance is reviewable by ordinary mandamus (
The factual setting of the present case illustrates the problems courts will face if we abandoned past precedent and attempted to devise a new
Plaintiffs alternatively urge that the present initiative is adjudicatory because it assertedly affects only three landowners. But this is a very myopic view of the matter; the proposed construction of housing for thousands of people affects the prospective tenants, the housing market, the residents living nearby, and the future character of the community. The number of landowners whose property is actually rezoned is as unsuitable a test as the size of the property rezoned. Yet without some test which distinguishes legislative from adjudicative acts with clarity and reasonable certainty, municipal governments and voters will lack adequate guidance in enacting and evaluating land-use decisions.
In summary, past California land-use cases have established generic classifications, viewing zoning ordinances as legislative and other decisions, such as variances and subdivision map approvals, as adjudicative. This method of classifying land-use decisions enjoys the obvious advantage of economy; the municipality, the proponents of a proposed measure, and the opponents of the measure can readily determine if notice, hearings, and findings are required, what form of judicial review is appropriate, and whether the measure can be enacted by initiative or overturned by referendum.
To depart from past precedent and embark upon a case by case determination, on the other hand, would incur substantial administrative cost. Such a rule would expose the municipality to the uncertainty of whether a proposed measure would be held to be legislative or adjudicative: it would entail cost to the litigants, and it would burden the courts with the resolution of these issues.
Plaintiffs argue, however, that the administrative cost which would be entailed by departure from precedent in this case is justified to pro-
Although from the landowner‘s view a “hearing” before the electorate may be less satisfactory than a hearing before a planning commission or city council, as a practical matter the initiative is unlikely to be employed in matters which could fairly be characterized as adjudicative in character. An initiative petition requires valid signatures of 10 percent of the registered voters. (
Neither do we believe departure from settled precedent is necessary to protect the public interest in rational and orderly land-use planning. Zoning changes must conform to the city‘s general plan (see
In conclusion, the current California rule that rezoning is a legislative act is well settled by precedent and comports with both federal and state constitutional requirements. The cost of departing from settled precedent in this setting is apparent; the benefits questionable and per-
Appellants Arnel and South Coast Plaza presented numerous other issues on appeal which the Court of Appeal, erroneously concluding that the initiative was not a legislative act, did not resolve. In order to assure that these issues are considered by the Court of Appeal, we retransfer this cause to that court. (See Taylor v. Union Pac. R.R. Corp. (1976) 16 Cal.3d 893, 895, 901 [130 P.2d 23, 549 P.2d 855]; Gonzales v. Nork (1978) 20 Cal.3d 500, 511 [143 Cal.Rptr. 240, 573 P.2d 458].)
The cause is retransferred to the Court of Appeal, Fourth Appellate District, for disposition in light of this opinion. With respect to the proceeding before this court each party shall bear its own costs.
Bird, C. J., Mosk, J., and Manuel, J., concurred.
Newman, J., concurred in the result.
RICHARDSON, J.----I respectfully dissent. In my view, the owner of real property is constitutionally entitled both to a proper notice and an effective opportunity to be heard before either the people or its government may change substantially the uses of the property. The majority holds otherwise. It concludes that while the grant of a zoning variance or use permit on real property is an “adjudicative” act, the amendment of an entire zoning ordinance is “legislative” in character even though that amendment affects only a very few parcels of land owned by only a very few persons. (Ante, pp. 518-519.) In so holding, the majority emphasizes the form of the administrative action, without considering either its substance or effect.
The result is to deny appellant property owners important due process protections to which they clearly should be entitled when their property is subjected to an adjudicative disposition. Approximately 12 percent of the registered voters of Costa Mesa, by approval of an initiative, are permitted to abort the construction of a carefully considered moderate income housing project without giving appellant owners any prior opportunity to express their opposition at a full public hearing. When measured against this sacrifice of fundamental constitutional rights and interests the majority‘s expressed concern for the saving of “administrative costs” (id., at p. 523) is of substantially less importance.
In 1974, we rejected a broad constitutional attack upon the use of the initiative process to enact zoning ordinances. (San Diego Bldg. Contractors Assn. v. City Council (1974) 13 Cal.3d 205 [118 Cal.Rptr. 146, 529 P.2d 570, 72 A.L.R.2d 973].) It was argued in San Diego that because zoning ordinances frequently have a direct and substantial effect upon property values, zoning by initiative would be an improper device unless accompanied by the requisite due process protections of notice and hearing. (Id., at pp. 220-224 (dis. opn. by Burke, J.).) We held, however, that such due process protections were required only in connection with “quasi-judicial” or “adjudicative” proceedings and need not accompany the adoption of “general legislation.” As we emphasized, “Since the enactment of the instant general zoning ordinance [adopting a 30-foot height limit for all building along San Diego‘s coastline] through the initiative process was unquestionably a legislative, as distinguished from adjudicative, act, the constitutional requirements of ‘notice’ and ‘hearing’ do not apply.” (Id., at p. 211.)
San Diego, however, relied primarily upon the principle that, “From the inception of this nation‘s legal system, statutes of general application have regularly been enacted without affording each potentially affected individual notice and hearing.” (Ibid., italics added.) We were definitionally precise. We quoted Justice Holmes’ familiar observation in Bi-Metallic Co. v. Colorado (1915) 239 U.S. 441, 445 [60 L.Ed. 372, 375, 36 S.Ct. 141], that “Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption.... General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard.” (Italics added.)
In San Diego we emphasized the further distinction that “the decisions applying the due process requirements of notice and hearing have all involved governmental decisionmaking in an adjudicative setting, in which the government‘s action affecting an individual was determined by facts peculiar to the individual case;.. [Italics in original.] [1] The
As the majority properly notes, the enactment of general zoning (and rezoning) measures ordinarily is deemed to be a legislative act. (See Johnston v. City of Claremont (1958) 49 Cal.2d 826, 834-835 [323 P.2d 71]; Toso v. City of Santa Barbara (1979) 101 Cal.App.3d 934, 942 [162 Cal.Rptr. 210]; Ensign Bickford Realty Corp. v. City Council (1977) 68 Cal.App.3d 467, 473 [137 Cal.Rptr. 304].) Appellants forcefully and correctly contend, however, that where, as here, a restrictive rezoning ordinance applies to only a small number of specific parcels of land owned by a few property owners adoption of the ordinance cannot fairly be characterized as “general legislation” which, in any reasonable sense, “establish[es] a broad, generally applicable rule of conduct” within the meaning of our San Diego rationale. Rather, the governmental action is “determined by facts peculiar to the individual case.” Such an ordinance much more closely resembles the grant of a variance or the award of a conditional use permit, matters which uniformly have been held to constitute adjudicative action. (San Diego, at p. 212 and cases cited in fn. 5; see also Horn v. County of Ventura (1979) 24 Cal.3d 605, 612-614 [156 Cal.Rptr. 718, 596 P.2d 1134] [approval of tentative subdivision map]; Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 548-549 [99 Cal.Rptr. 745, 492 P.2d 1137] [grant of conditional use permit]; Glenn, State Law Limitations on the Use of Initiatives and Referenda in Connection with Zoning Amendments (1978) 51 So.Cal. L.Rev. 265, 273 [noting the functional equivalence of zoning amendments and special use permits]; Oren, The Initiative and Referendum‘s Use in Zoning (1976) 64 Cal.L.Rev. 74, 89-90 [same].)
I find it wholly anomalous that, had appellants voluntarily sought a zoning variance or use permit for their own property, a due process hearing would have been required to permit an airing of the pros and
In Horn, supra, we recently explored further the distinctions between legislative and adjudicative action within the context of the due process requirements in land use cases. Our analysis in Horn is instructive and fully applicable here. We first restated as follows the general rules which govern these controversies: “Due process principles require reasonable notice and opportunity to be heard before governmental deprivation of a significant property interest. [Citations.] [¶] It is equally well settled, however, that only those governmental decisions which are adjudicative in nature are subject to procedural due process principles. Legislative action is not burdened by such requirements. [Citations, italics in original.] ... [¶] We expressly cautioned in San Diego that land use planning decisions less extensive than general rezoning could not be insulated from notice and hearing requirements by application of the ‘legislative act’ doctrine....” (24 Cal.3d at pp. 612-613, italics added.) Does the present case involve “general rezoning“? Manifestly not.
In Horn, the county had approved a tentative subdivision map without giving prior notice to adjoining property owners. Employing the principles described in San Diego, we observed that “Subdivision approvals, like variances and conditional use permits, involve the application of general standards to specific parcels of real property. Such governmental conduct, affecting the relatively few, is ‘determined by facts peculiar to the individual case’ and is ‘adjudicatory’ in nature. ... [¶] Resolution of these issues [regarding subdivision approval] involves the exercise of judgment, and the careful balancing of conflicting interests, the hallmark of the adjudicative process. The expressed opinions of the affected landowners might very well be persuasive to those public officials who make the decisions, and affect the outcome of the subdivision process.” (Id., at pp. 614-615, italics added.)
The Costa Mesa initiative herein presented contains no general statement of land development policy. It prescribes no criteria of broad, general application to all city property, or even to all property within a particular zone or district. Rather, the ordinance is pointed at only three owners. It relates to the specific uses of three very specific parcels constituting only a small fraction of the zoned property within city limits. As such, the ordinance is “adjudicative” within any rational meaning of the term as defined in our prior cases.
The foregoing analysis finds support in three very recent and relevant legal commentaries. Commenting upon the doubtful social value of the initiative process in the context of rezonings, one writer has observed that “Where questions on the [initiative] ballot affect and interest many voters, public participation in decisions would indeed further accuracy and acceptability values. On the other hand, where only a few owners of a single parcel are affected ... and the decision to be made requires the evaluation of specific facts, voters would have much less to contribute, while a formal hearing would be valuable. Additionally, voters will have less to complain about if they are not consulted on decisions which affect only a few citizens.” (Kahn, In Accordance with a Constitutional Plan: Procedural Due Process and Zoning Decisions (1979) 6 Hastings Const.L.Q. 1011, 1047-1048, italics added.)
Equally recently another author has focused precisely upon the due process aspects of zoning by initiative, in noting that “There is a significant risk that zoning by initiative may erroneously and permanently deprive affected landowners of their property rights. The electorate is
Still another current commentator stresses the inappropriateness of the initiative process as a device to accomplish “small-scale rezoning decisions.” Professor Peter G. Glenn reasons that “The essential characteristic of a tract or small-area rezoning is that the decision directly imposes, removes, or modifies regulations in the context of a particular development proposal.... [1] In such cases an intelligent decision would seem to require a factfinding and assessment process by persons who have developed some expertise and who are conversant with less obvious implications of the decision for the community‘s overall planning effort. To the extent that particularized facts are relevant, a somewhat formal hearing process would seem to be essential to provide the basis for both intelligent decisionmaking and concomitant fairness to those affected by the decision. Fairness also suggests the desirability of a final decision by the representative governing body ....[1] These characteristics of a small-area rezoning suggest that plebiscite decisionmaking may not yield intelligent decisions and may result in decisions that are unfair to the affected landowners. [1] Finally, small-scale rezoning decisions are hardly the type of governmental decision for which the direct legislation devices were designed. These rezonings rarely involve statements of general public policy; such decisions implement rather than declare policy, and often do so in a context where the citizens most directly affected are accorded special rights of participation in the representative decision making process. On balance, the small-scale rezoning decision appears to be one in which a choice should be made against the use of the direct legislation devices; a contrary result threatens important societal values without a significant countervailing benefit.” (Glenn, supra, 51 So.Cal.L.Rev. at pp. 304-305, fns. omitted.)
The distinction between “adjudicative” and “legislative” matters does not lend itself to easy or precise definition. The courts and commenta-
I emphasize that in the present case we are concerned with the legislative or adjudicative character of the ordinance for the purpose of determining whether due process requirements were satisfied. We are not presented with the question whether the adjudicative nature of rezoning ordinances of this kind requires either a more probing form of judicial review or the preparation of judicial-type findings. (See, e.g., Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517 [113 Cal.Rptr. 836, 522 P.2d 12]; Toso v. City of Santa Barbara, supra, 101 Cal.App.3d 934, 942; Ensign Bickford Realty Corp. v. City Council, supra, 68 Cal.App.3d 467, 473.) The disposition of such further issues may well be governed by considerations not fully developed here.
The majority insists that the initiative process itself meets due process requirements affording appellants and those similarly affected both ample notice and opportunity to express their views prior to the adoption of the measure. I am unable to agree. The initiative process is ill-suited to effect the kind of adjudicative changes that are herein presented. Justice Tamura speaking for the court in Taschner v. City Council (1973) 31 Cal.App.3d 48, 64 [107 Cal.Rptr. 214] (disapproved on other grounds in Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 596, fn. 14 [135 Cal.Rptr. 41, 557 P.2d 473, 92 A.L.R.3d 1038]) carefully and accurately describes the
The Taschner court concluded that some provision for notice and hearing comparable to the provisions of the state zoning laws is required as a matter of constitutional due process, at least whenever the zoning measure substantially affects land use in an adjudicative manner. (For similar analyses, see Associated Home Builders, supra, 18 Cal.3d 582, 613-615 (dis. opn. by Clark, J.); San Diego, supra, 13 Cal.3d 205, 222-223 (dis. opn. by Burke, J.); People‘s Lobby, Inc. v. Board of Supervisors (1973) 30 Cal.App.3d 869, 873 [106 Cal.Rptr. 666]; Comment (1973) 10 Cal. Western L.Rev. 105, 114-117; Kahn, supra, 6 Hastings Const.L.Q. at pp. 1047-1048; Glenn, supra, 51 So. Cal. L.Rev. at pp. 304-305; but see Oren, supra, 64 Cal.L.Rev. at pp. 92-93.)
I am unpersuaded by the majority‘s professed concern over the inability of courts to draw lines of distinction between “relatively small” and “large” parcels of land held by a “few” as opposed to “many” landown-
Regardless of semantic niceties, however, the decision in this case should turn on what is a fair, equitable and just resolution of this dispute between the affected parties. On the one hand the majority principally urges that its result effects an “economy” (ante, p. 523) or lessened “administrative cost” (id., at p. 523). But we have been traditionally hesitant as a court to place a price tag on a constitutional right, and what of the opposing interest, the property rights of appellants? It is fundamental that the Fifth and Fourteenth Amendments of the federal Constitution impose due process property protections against both federal and state action. If one turns to the California Constitution one need go no further than the very first section of the very first article before learning that the sovereign people of this state have identified “acquiring, possessing, and protecting property” as rights which they have described as “inalienable,” and which they have ranked following only “life and liberty” and before their “safety, happiness, and privacy.” I am thus led to the inevitable conclusion that in determining priorities, appellant‘s constitutional protection comes first, and any administrative convenience, efficiency, or economy comes a distant second. On principle the question must be asked-why is not the property owner entitled to a notice and a fair opportunity to be heard before the use of the subject property is so significantly affected?
I do not suggest that it would be impossible to modify the initiative process in a manner that would accord with due process principles. Justice Burke wisely observed that “The Legislature or the governing boards of local public entities might well develop an approach which strikes a proper balance between the rights of the affected property owners and the interests of the public in reserving the power to initiate legislation.” (San Diego Bldg. Contractors Assn. v. City Council, supra, 13 Cal.3d 205, 224, fn. omitted; see also Kahn, supra, 6 Hastings Const.L.Q. at p. 1048; Comment, supra, 10 Cal. Western L.Rev. 105, 128-130, advancing a proposal to permit zoning by initiative with provision for a modification hearing by the governing body after the initiative measure is adopted.) As carefully noted in Horn, “We deliberately refrain from describing a specific formula which details the nature, content, and timing of the requisite notice [and hearing]. Rath-
Leaving the specifics in legislative hands we should reaffirm, however, the constitutional requirement that notice and opportunity to be heard must be afforded the landowner, large or small, when within an adjudicative setting governmental decisions are made which substantially affect his property.
I would reverse the judgment and direct the trial court to declare invalid the subject initiative ordinance.
Clark, J., concurred.