COUNSEL:

Kerwin & Kerwin and Melvin C. Kerwin for Plaintiffs and Appellants.

Rushing, Lyions & Anderson and Michael L. Lyions for Defendants and Respondents.

BIANCHI, J. [FN*]

FN* Retired judge of the Kern Superior Court sitting under assignment by the Chairperson of the Judicial Council.

California Aviation Council (Aviation Council) and Modesto Airport Pilots Association (Pilots) sought a writ of mandamus and filed a complaint for declaratory and injunctive relief in Stanislaus County Superior Court in May 1990. Named defendants were the City of Ceres (City), its city council, and individual council members (City Council).

Aviation Council and Pilots sought to have (1) City ordered to rescind City of Ceres Ordinance No. 89-744 adopted January 8, 1990 (ordinance); (2) a declaration the ordinance was not adopted in compliance with Public Utilities Code [FN 1] section 21676, subdivision (b); (3) a preliminary and permanent injunction staying the effectiveness of the ordinance until the propriety of its enactment had been established. The ordinance made a finding of consistency with regard to development of approximately 450 acres in the area of the Modesto airport.

[FN 1] All statutory references are to the Public Utilities Code unless otherwise indicated.

Declaratory relief was sought in the second cause of action. Pilots and Aviation Council asked for a judicial determination of the rights and obligations of the parties, and for the court to declare the City Council's failure to make specific findings to be an abuse of discretion, thereby rendering the ordinance null and void. A further declaration was sought with regard to a finding of consistency by the City Council. It was also requested the ordinance be declared null and void because the finding had no evidentiary basis.

In the third cause of action, a preliminary injunction, later to be made permanent, was sought to enjoin City and City Council from allowing development of certain land covered by the ordinance.

Reasonable attorney fees and costs were also sought.

In their answer filed in June, City and City Council primarily denied the allegations, admitted making a finding of consistency, and alleged information in the petition was insufficient for them to provide other answers. The prayer included a request that the peremptory writ of mandate be denied, that the ordinance be declared lawfully enacted and valid, and that the request for a permanent injunction be denied.

A court trial followed in March. A motion for dismissal by City and City Council was heard. Following the presentation of evidence, additional briefing was ordered. Posttrial briefs were provided by the parties.

In April the court rendered a decision in favor of City and City Council. Judgment was entered in March, and notice of entry of judgment took place in May. Pilots and Aviation Council timely appeal.

City Council enacted the ordinance in question on January 8, 1990. The ordinance approved a portion of the Mitchell Road Corridor Specific Plan and Design Guidelines (Specific Plan). Part of the approved Specific Plan is within an area included in the local Airport Land Use Commission (ALUC) Plan, and involves property within the approach and transitional surface of the Modesto airport. The ordinance permits residential construction and occupancy, and other related uses.

The ALUC reviewed the ordinance prior to passage and found it inconsistent with the Airport Comprehensive Land Use Plan.

A public hearing was held before the City Council on December 11, 1989, in which testimony opposing the ordinance was received. The City Council overruled ALUC's finding of inconsistency, found the ordinance consistent with section 21670, and approved the proposed land uses.

Pilots and Aviation Council attack the action of the City Council primarily on the basis that the findings made were inadequate. The response by City and City Council is that there are two types of responses available to the City Council, depending upon the capacity in which the City Council is acting: legislative or administrative. Specific findings were unnecessary because the City Council was acting in a legislative capacity rather than in an administrative one. Recognizing that two types of responses exist, City and City Council do not argue in the alternative that under either requirement their findings were adequate. The threshold question, therefore, is which type of findings were required.

Section 21676 provides in pertinent part:

"(b) Prior to the amendment of a general plan or specific plan, or the adoption or approval of a zoning ordinance or building regulation within the planning boundary established by the airport land use commission pursuant to Section 21675, the local agency shall first refer the proposed action to the commission. If the commission determines that the proposed action is inconsistent with the commission's plan, the referring agency shall be notified. The local agency may, after a public hearing, overrule the commission by a two-thirds vote of its governing body if it makes specific findings that the proposed action is consistent with the purposes of this article stated in Section 21670." (Italics added.)

"(a) The Legislature hereby finds and declares that:

"(1) It is in the public interest to provide for the orderly development of each public use airport in this state and the area surrounding these airports so as to promote the overall goals and objectives of the California airport noise standards adopted pursuant to Section 21669 and to prevent the creation of new noise and safety problems.

"(2) It is the purpose of this article to protect public health, safety, and welfare by ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public's exposure to excessive noise and safety hazards within areas around public airports to the extent that these areas are not already devoted to incompatible uses.

"(b) In order to achieve the purposes of this article, every county in which there is located an airport which is served by a scheduled airline shall establish an airport land use commission. Every county, in which there is located an airport which is not served by a scheduled airline, but is operated for the benefit of the general public, shall establish an airport land use commission, except that the board of supervisors of the county may, after consultation with the appropriate airport operators and affected local entities and after a public hearing, adopt a resolution finding that there are no noise, public safety, or land use issues affecting any airport in the county which require the creation of a commission and declaring the county exempt from that requirement. The board shall, in this event, transmit a copy of the resolution to the Director of Transportation. For purposes of this section, 'commission' means an airport land use commission."

"(a) In any county in which there is no airport land use commission or other body designated to assume the responsibilities of an airport land use commission, or in which the commission or other designated body has not adopted an airport land use plan, an interested party may initiate proceedings in a court of competent jurisdiction to postpone the effective date of a zoning change, a zoning variance, the issuance of a permit, or the adoption of a regulation by a local agency, which directly affects the use of land within one mile of the boundary of a public airport within the county.

"(b) The court may issue an injunction which postpones the effective date of the zoning change, zoning variance, permit, or regulation until the governing body of the local agency which took the action does one of the following:

"(1) In the case of an action which is a legislative act, adopts a resolution declaring that the proposed action is consistent with the purposes of this article stated in Section 21670.

"(2) In the case of an action which is not a legislative act, adopts a resolution making findings based on substantial evidence in the record that the proposed action is consistent with the purposes of this article stated in Section 21670.

"(3) Rescinds the action.

"(4) Amends its action to make it consistent with the purposes of this article stated in Section 21670, and complies with either paragraph (1) or (2) of this subdivision, whichever is applicable.

"(c) The court shall not issue an injunction pursuant to subdivision (b) if the local agency which took the action demonstrates that the general plan and any applicable specific plan of the agency accomplishes the purposes of an airport land use plan as provided in Section 21675.

"(d) An action brought pursuant to subdivision (a) shall be commenced within 30 days of the decision or within the appropriate time periods set by Section 21167 of the Public Resources Code, whichever is longer.

"(e) If the governing body of the local agency adopts a resolution pursuant to subdivision (b) with respect to a publicly owned airport that the local agency does not operate, the operator of the airport shall be immune from liability for damages to property or personal injury from the local agency's decision to proceed with the zoning change, zoning variance, permit, or regulation.

"(f) As used in this section, 'interested party' means any owner of land within two miles of the boundary of the airport or any organization with a demonstrated interest in airport safety and efficiency."

"'Generally speaking, a legislative [act] is the formulation of a rule to be applied to all future cases, while an adjudicatory act involves the actual application of such a rule to a specific set of existing facts. [Citations.]' (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 35, fn. 2 [112 Cal.Rptr. 805, 520 P.2d 29]; see also Quinchard v. Board of Trustees (1896) 113 Cal. 664, 670 [45 P. 856]; Santa Ana Tustin Community Hospital v. Board of Supervisors (1982) 127 Cal.App.3d 644, 650 [179 Cal.Rptr. 620].)

The distinction between legislative and adjudicatory acts has also been described by the California Supreme Court as follows: 'Whenever an act undertakes to determine a question of right or obligation, or of property, as the foundation upon which it proceeds, such act is to that extent a judicial one, and not the proper exercise of legislative functions.' (Wulzen v. Board of Supervisors (1894) 101 Cal. 15, 24 [36 P. 353], quoting Sinking-Fund Cases (1878) 99 U.S. 700, 761 [25 L.Ed. 496, 504, 516].) The cases also hold that the classification of an administrative decision as adjudicatory or legislative does not depend on the nature of the decision-making body (Quinchard v. Board of Trustees, supra, 113 Cal. at p. 669), the procedural characteristics of the administrative process (Patterson v. Central Coast Regional Com. (1976) 58 Cal.App.3d 833, 841 [130 Cal.Rptr. 169]; Rivera v. Division of Industrial Welfare (1968) 265 Cal.App.2d 576, 586-587 [71 Cal.Rptr. 739]), or the breadth or narrowness of the administrative agency's discretion (Pitts v. Perluss (1962) 58 Cal.2d 824, 834 [27 Cal.Rptr. 19, 377 P.2d 83])."

Pacifica involved an application for an allotment under the City of Camarillo's growth control ordinance to allow for residential development. The court interpreted the growth control ordinance and found the city's action in approving the project to be adjudicative rather than legislative. (149 Cal.App.3d at pp. 171-172.)

The actions of the City Council in this case were not legislative. The ordinance at issue is provided as appendix A:

"Ordinance" is defined as follows: "A rule established by authority; a permanent rule of action; a law or statute. In its most common meaning, the term is used to designate the enactments of the legislative body of a municipal corporation. An ordinance is the equivalent of a municipal statute, passed by the city council, or equivalent body, and governing matters not already covered by federal or state law. Ordinances commonly govern zoning, building, safety, etc. matters of municipality." (Black's Law Dict. (5th ed. 1979) p. 989, col. 1.)

Findings where an adjudicative act takes place were discussed at length in Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506 [113 Cal.Rptr. 836, 522 P.2d 12]:

"We further conclude that implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. If the Legislature had desired otherwise, it could have declared as a possible basis for issuing mandamus the absence of substantial evidence to support the administrative agency's action. By focusing, instead, upon the relationships between evidence and findings and between findings and ultimate action, the Legislature sought to direct the reviewing court's attention to the analytic route the administrative agency traveled from evidence to action. In so doing, we believe that the Legislature must have contemplated that the agency would reveal this route. Reference, in section 1094.5, to the reviewing court's duty to compare the evidence and ultimate decision to 'the findings' (italics added) we believe leaves no room for the conclusion that the Legislature would have been content to have a reviewing court speculate as to the administrative agency's basis for decision.

. . . . . . . . . . .

"Among other functions, a findings requirement serves to conduce the administrative body to draw legally relevant sub-conclusions supportive of its ultimate decision; the intended effect is to facilitate orderly analysis and minimize the likelihood that the agency will randomly leap from evidence to conclusions. (See 2 Cooper, State Administrative Law (1965) pp. 467-468; Feller, Prospectus for the Further Study of Federal Administrative Law (1938) 47 Yale L.J. 647, 666. Cf. Comment, Judicial Control Over Zoning Boards of Appeal; Suggestions for Reform (1965) 12 U.C.L.A. L.Rev. 937, 952.) In addition, findings enable the reviewing court to trace and examine the agency's mode of analysis. (See California Motor Transport Co. v. Public Utilities Com. (1963) 59 Cal.2d 270, 274 [28 Cal.Rptr. 868, 379 P.2d 324]; Swars v. Council of City of Vallejo (1949) 33 Cal.2d 867, 871 [206 P.2d 355].)"

Because the action of the City Council was adjudicatory in nature, it was required to make specific findings within the meaning of section 21676, and those findings were further required to meet the standards set forth in Topanga.

The analogy to section 21679 is imperfect because that section applies to different circumstances. In addition, in drafting section 21676 it appears the Legislature intended that the type of findings required were those described in subdivision (b)(2) of section 21679, rather than the declaration described in subdivision (b)(1) as argued by the City and City Council. Section 21676 does not mention declarations. Instead, it requires findings without qualification, except that they be specific. Indeed, it does not even anticipate a single finding, but instead uses the plural "findings," as does subdivision (b)(2) of section 21679. If the Legislature intended a declaration to suffice, it would have been a simple matter for it to adopt language similar or identical to that in subdivision (b)(1) of section 21679 when it drafted section 21676.

City and City Council argue that the liability shifting of section 21678 when the agency overrides an ALUC finding of inconsistency (see also s 21679, subd. (e)) is dispositive on the question of whether a legislative act is carried out by the override. This argument fails to shed any light on the question.