Opinion
10-30-1951
EDMONDS v. BOARD OF SUP'RS, LOS ANGELES COUNTY. Civ. 18316.
Richard Richards, Los Angeles, for appellant. Harold W. Kennedy, County Counsel, Edward H. Gaylord, Deputy County Counsel, Los Angeles, for respondent.
EDMONDS
v.
BOARD OF SUP'RS, LOS ANGELES COUNTY.
Oct. 30, 1951.
Rehearing Denied Nov. 19, 1951.
Hearing Granted Dec. 20, 1951. *
Richard Richards, Los Angeles, for appellant.
Harold W. Kennedy, County Counsel, Edward H. Gaylord, Deputy County Counsel, Los Angeles, for respondent.
DRAPEAU, Justice.
By a petition for a writ of review, plaintiff sought to annul an order of defendant board revoking his license to operate a trailer park. From the judgment sustaining such order, plaintiff appeals.
From an agreed statement now before this court, it appears that appellant commenced operating the trailer court in 1941, and by July 5, 1945, he was using all of the five lots here involved. On November 9, 1945, the property was rezoned from C-3 to R-4, and the lots restricted to residential use. By the terms of the ordinance, the rezoning had no retroactive effect upon appellant's business or property. Under the schedule set out in the ordinance, appellant 'was entitled to a twenty-year period to liquidate the valid pre-existing use. That is twenty years from November 9, 1945.'
On November 9, 1945 when the property was rezoned, appellant was operating 20 trailers under permits from the State of California and licenses from the county. The business was operated as an entity and its facilities were available to all guests.
On July 9, 1946, appellant applied for a zone exception, the stated purpose of which was to bring within the scope of the ordinance 'an existing nonconforming installation.' On September 5, 1946, this exception was approved by the County Regional Planning Commission, subject to a one-year limitation. Upon appeal to respondent Board, the exception was sustained on October 15, 1946, subject to a three-year limitation, to wit:
'5. That after a period of three (3) years from the time the exception was granted by the Board of Supervisors, the use of the entire property including the present nonconforming trailer court shall be abandoned, and the use of the property shall revert to the use permitted in the zone existing at that time.'
By its terms the zone exception was not to be effective unless and until it was accepted by appellant in writing and a bond filed by him. These conditions have never been complied with by appellant.
On December 12, 1946, the State of California granted appellant a permit to operate 30 additional trailers on the property, making a total of fifty. All state permits and county licenses were paid for and in full force and effect on May 2, 1950, when respondent revoked appellant's license to operate the trailer park pursuant to the three-year limitation hereinbefore recited.
At the time the instant judgment was rendered, the trial judge filed the following memorandum opinion:
'An examination of the record makes it clear that Petitioner was entitled to operate a trailer park of only 20 units on the theory of nonconforming use, prior to October, 1946. The Board granted petitioner an exception for 30 additional trailers at the hearing of October 15, 1946, on condition the entire trailer park, including the nonconforming use, be abandoned at the end of three years. (The Regional Planning Commission had recommended one year, and petitioner had appealed to the Board.) Petitioner now says he did not accept the exception voted him at the hearing. True, he did not accept it in writing. But he verbally accepted it at the hearing, and by his subsequent acts in establishing the additional accommodations he unmistakably demonstrated his acceptance in fact of the exception voted him by the Board with the conditions attached. (Emphasis included.)
'If, however, petitioner claims no benefit from the aforesaid exception, then he is clearly violating the zoning ordinance in maintaining forty-odd trailers on the premises.
'In either view of the case there is ample support for the Board's action and its order revoking petitioner's license is sustained.'
It is here contended (a) that appellant's pre-existing nonconforming use was not affected by the action of the respondent on October 15, 1946; and (b) that such pre-existing nonconforming use was not limited to twenty units.
In connection with his first point, appellant argues that it is undisputed that he 'did have a pre-existing nonconforming use'; that since he did not accept respondent's three-year limitation in writing, as required, the exception never attached, and he continued to operate the trailer park pursuant to his pre-existing legal rights, i. e., by operation of law.
It was stipulated by the parties hereto that prior to August 2, 1946, section 15 of Ordinance No. 1494 read as follows:
'Section 15. Existing Uses. Nothing contained in this ordinance shall be deemed or construed to prohibit a continuation of the particular existing use or uses of any building, structure, improvement or premises existing in the respective zones at the time this ordinance becomes effective in the event that such existing use is not in violation of any other ordinance or law; provided, that if such use is changed to a different use such different use shall conform to the provisions of this ordinance regulating the particular zone in which the premises are located.' Some time after its passage, this section was renumbered to read 125.
Effective August 2, 1946, section 125 was repealed and section 165 was substituted therefor, and was in effect on October 15, 1946 when respondent board passed upon appellant's exception, to wit:
'Section 165. Existing Uses. An exception is hereby automatically granted so as to permit the continuation of the particular existing uses of any building, structure, improvement, or premises existing in the respective zones at the time this ordinance or any amendment thereof becomes effective if such existing use is not in violation of any other ordinance or law. Such exception shall remain in force and effect for the following lengths of time, except that it may be extended or revoked as provided in this article. * * *
'(c) * * * twenty years, and for such longer time so that the total life of the improvement from date of construction will be:'
It was further stipulated that 'from July 17, 1946 until December 12, 1946, there was, upon the five lots above described, an excess of trailers above the twenty authorized under the State permits. However, such number did at no time exceed forty-eight trailers.'
At the hearing before respondent board on October 15, 1946, the following took place:
'Mr. Richerson: Mr. Chairman, I might charify the fact that if Mr. Edmonds does not agree to abandon this use on the two southerly lots, he cannot be forced off of there until twenty years. If he agrees to the exception under these terms, then he can.
'Mr. Darby: He can be forced off the north three immediately.
'Mr. Jessup: We are going to drive a bargain with you right now. You are going to agree to this three years or I am going to change my motion.
'Mr. Edmonds: No.
'Mr. Jessup: I am going to change my motion right now.
'Mr. Ford: And make it one year?
'Mr. Darby: Make it nothing, out right now.
'Mr. Jessup: Or nothing and out completely.
'Mr. Edmonds: That is a considerable investment and I would rather take the consequences.
'Mr. Ford: What is your income? You get $12 a month on how many trailers?
'Mr. Edmonds: There are 49 trailers, 48 of which are paying.
'Mr. Jessup: You have the right on two lots?
'Mr. Edmonds: That is right.
'Mr. Jessup: How many trailers on the two lots?
'Mr. Edmonds: Approximately 30 lots (trailers). * * *
'Mr. Ford: Are you sure you don't want to consider that proposition on the three years? * * *
'Mr. Edmonds: I would reconsider on my attorney's advice. * * *
'Mr. Food: Mr. Edmonds has said on advice of his attorney he would reconsider and comply with the provisions as we have made them. Is that right, Mr. Edmonds?
'Mr. Edmonds: That is right.'
This is an exemplar of what Mr. Justice Carter meant, when he said in his dissenting opinion on denial of hearing by the Supreme Court in People v. Rochin, 101 Cal.App.2d 140, 148, 225 P.2d 1, 913, 916.
'Every student of history recognizes that the abuse of official power has been the source of the major ills inflicted upon mankind since the existence of organized governments.'
Since it was stipulated that on July 5, 1945, several months prior to the rezoning, appellant was using all five lots in the operation of his trailer park, it can readily be seen why he was so reluctant to accept the three-year limitation imposed by the Board on October 15, 1946. Moreover, there is no evidence that he did accept such limitation. At the hearing he merely stated he would reconsider on his attorney's advice. At no time did he meet the conditions imposed: (1) that he accept the zoning exception in writing; (2) that he file a bond of $2,000. Instead, he was content to 'take the consequences' of his reliance on the automatic exception provided for in section 165 of the zoning ordinance.
A provision exempting nonconforming uses existing at the time of their adoption 'is ordinarily included in zoning ordinances because of the hardship and doubtful constitutionality of compelling the immediate discontinuance of nonconforming uses. See Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14. 'The object of such a provision is the gradual elimination of the nonconforming use by obsolescence or destruction by fire or the elements, and it has been frequently upheld by the courts.' Rehfeld v. City and County of San Francisco, 218 Cal. 83, 84, 21 P.2d 419, 420.' County of San Diego v. McClurken, 37 Cal.2d 683, 234 P.2d 972, 975. As stated in the cited case: 'There is a growing tendency to guard against the indefinite continuance of nonconforming uses by providing for their liquidation within a prescribed period.' In the instant case, twenty years.
With respect to appellant's second point that his nonconforming use is not limited to twenty trailers, it was held in Dobbins v. City of Los Angeles, 195 U.S. 223, 25 S.Ct. 18, 49 L.Ed. 169: 'In determining whether a nonconforming use was the same before and after passage of a zoning ordinance so as to be permissible, each case must stand on its own facts.'
In support of his continuing use, appellant throughout has relied on the automatic exception granted by section 165 of the zoning ordinance, and not upon the additional use permitted by the exception given by respondent board.
Section 165, supra, allows the continuation of the particular nonconforming uses in existence on the date it became effective, i. e., November 9, 1945. And it is agreed herein that appellant was at that time operating twenty trailers on his property, accordingly, it would appear that appellant is not entitled to extend or enlarge his existing nonconforming use beyond that number. Because, as stated in City of Yuba City v. Cherniavsky, 117 Cal.App. 568, 573, 4 P.2d 299, 301: 'If there is no limitation upon the character or location of a nonconforming business, so long as it is located on the same lot where it formerly existed, then one may abandon an inexpensive notions counter which was maintained prior to the adoption of a zoning ordinance, and construct in lieu thereof an elaborate mercantile establishment at the opposite end of the same lot, at an unlimited expense, and thus circumvent and destroy the very purpose of the ordinance. We are satisfied this may not be done under the provisions of the present ordinance.'
The Yuba City case, supra, was cited by the court in its comments made at the end of the trial in the companion case of Edmonds v. County of Los Angeles, Cal.App., 236 P.2d 650.
It was also cited with approval in Pisicchio v. Board of Appeals of Village of Freeport, 165 Misc. 156, 300 N.Y.S. 368, 369, wherein it was stated: 'Unless owners of nonconforming uses in zoning areas are required to adhere to the excepted use in volume of trade as well as character of business, zoning laws will be rendered ineffectual and such favored parcels of property will assume great values based not upon a natural growth, but upon the right of the owner to extend and enlarge the existing nonconforming use.'
For the reasons stated, the judgment is reversed with directions to the trial court to annul the order of respondent board revoking appellant's business license and to enter a new judgment in accordance with the views herein expressed.
WHITE, P. J., and DORAN, J., concur. --------------- * Subsequent opinion 255 P.2d 781.