Gong

Both sides appeal from portions of a judgment rendered in a mandamus proceeding brought to test the validity of two conditions attached to a land use permit.

The Procedural Background

Plaintiffs desire to build an auto service station upon their undeveloped property abutting Peralta Boulevard in the City of Fremont. The property lies within a “neighborhood commercial” zone in which service stations are prohibited except as conditional uses. (Fremont Municipal Code § 8-21003, part of the zoning ordinance of the City of Fremont, hereinafter cited “Fremont Code.”) The ordinance establishes criteria to guide the city planning commission in passing judgment upon proposed conditional uses. (Fremont Code § 8-22502.) Accordingly, the landowners applied to the planning commission for a use permit. After a hearing at which the landowners appeared by counsel, the commission issued a permit subject to 13 conditions affecting the development and use of the property.

Using a procedure provided for in the zoning ordinance (Fremont Code ch. 2, tit. VIII, art. 30) the property owners, in an appeal to the city council, attacked four of the conditions imposed by the planning commission. The city…