Environmental Law Fund, Inc. v. Town of Corte Madera

Respondents Environmental Law Fund, Inc., Marilyn L. Hallin and Larry Weingarth commenced this action, in which they sought relief in administrative mandamus and a declaratory judgment, to challenge (1) the validity of a conditional use permit issued by the planning commission of defendant-appellant Town of Corte Madera (to which we hereinafter refer on occasion as the “Town”) 1 to real parties in interest-appellants Harter-Odenthal Investment Company, Bix Land Corporation, Composite Structures, Inc., and Cal-West Communities, Inc. (the “developers”); and (2) the validity of a tentative subdivision map, of the area affected by the permit, as approved by the commission upon the developers’ application.

In the judgment from which the appeal is taken, the trial court ordered that the grant of the conditional use permit, as authorized by the Corte Madera Municipal Code, violated the provisions of Government Code section 65853 which establish procedures for changes in zoning, and that the procedures authorized in the municipal code for such purpose were invalid because they conflicted with the state zoning law. The court also ordered the Town to rescind its actions relative…

I concur in parts II, III, IV and V of the majority opinion but dissent as to part I.

The majority concede that the rule is well established that if an administrative remedy is provided by statute (or ordinance) a litigant must invoke and exhaust such remedy before relief of mandamus under section 1094.5 of the Code of Civil Procedure is available. (Ralph’s Chrysler-Plymouth v. New Car Dealer’s Policy & Appeals Bd. (1973) 8 Cal.3d 792 [ 106 Cal.Rptr. 169 , 505 P.2d 1009 ]; Temescal Water Co. v. *121 Dept. Public Works (1955) 44 Cal.2d 90 [ 280 P.2d 1 ].) Exhaustion of petitioner’s administrative remedies is a jurisdictional prerequisite, not a matter of judicial discretion. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293 [ 109 P.2d 942 , 132 A.L.R. 715 ]; Morton v. Superior Court (1970) 9 Cal.App.3d 977, 981 [ 88 Cal.Rptr. 533 ].)

“[E]ven 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.” (United States v. Superior Court (1941) 19 Cal.2d 189, 195 [ 120 P.2d 26 ]; Smith v. City of Duarte (1964)…

Bagshaw, Martinelli, Corrigan & Jordan and Leland H. Jordan for Real Parties in Interest and Appellants.

No appearance for Defendants and Appellants.

Carrow, Jones, Applen & Forest, Joseph A. Forest and Paul Kayfetz for Plaintiffs and Respondents.

OPINION

RATTIGAN, J.

Respondents Environmental Law Fund, Inc., Marilyn L. Hallin and Larry Weingarth commenced this action, in which they sought relief in administrative mandamus and a declaratory judgment, to challenge (1) the validity of a conditional use permit issued by the planning commission of defendant-appellant Town of Corte Madera (to which we hereinafter refer on occasion as the "Town") [1] to real parties in interest-appellants Harter-Odenthal Investment Company, Bix Land Corporation, Composite Structures, Inc., and Cal-West Communities, Inc. (the "developers"); and (2) the validity of a tentative subdivision map, of the area affected by the permit, as approved by the commission upon the developers' application. [2]

In the judgment from which the appeal is taken, the trial court ordered that the grant of the conditional use permit, as authorized by the Corte Madera Municipal Code, violated the provisions of Government…