Opinion
10-10-1950
SAN DIEGO COUNTY v. McCLURKEN et al. Civ. 4207.
James Don Keller, District Attorney, Bertram McLees, Jr., and Duane J. Carnes, Deputies District Attorney, all of San Diego, for appellant. Bertrand L. Comparet, San Diego, for respondents.
SAN DIEGO COUNTY
v.
McCLURKEN et al.
Oct. 10, 1950.
Hearing Granted Dec. 7, 1950. *
James Don Keller, District Attorney, Bertram McLees, Jr., and Duane J. Carnes, Deputies District Attorney, all of San Diego, for appellant.
Bertrand L. Comparet, San Diego, for respondents.
BARNARD, Presiding Justice.
This is an action to enjoin the defendants from using or maintaining certain tanks, for the storage of gasoline and/or other liquid fuels, which are claimed to constitute a violation of a county zoning ordinance.
The particular property here involved is a part of lot 17 of a subdivision in unincorporated territory, and is about a mile from the main center of a community known as Lemon Grove. In 1937 the defendants bought lot 17, which consists of 20 acres, and about half of lot 16, which consists of 10 acres. These two lots and two similar lots constitute a body of land containing about 60 acres with roads on three sides, but with no cross roads. The defendants immediately commenced the development and use of their entire parcel for heavy industrial purposes, which has been carried on continuously ever since. When this use was begun the area in this vicinity was nearly all undeveloped property and there were few, if any, residences in the neighborhood.
From the beginning, the defendants have used their property, as a unit, for the following purposes: above-ground storage of gasoline and other fuels; storage of paint for industrial painting; wholesale storage and sale of lumber; storage of steel beams and parts of machinery for heavy manufacturing; storage of rock, sand and gravel; storage of junk and old iron; manufacture of acetylene gas and metal bearings; automobile and truck wrecking; building and rebuilding of heavy machinery; boiler repair shop; heavy machine shop; commercial planing mill; sand blasting; welding; heavy manufacturing processes using up to 2000 h. p. to operate the various machines used; and general heavy construction contracting business. In connection with this use, extensive leveling of higher land and filling in of swampy areas was done. A number of buildings were built, some being 50 to 100 feet wide and 200 to 250 feet long. While some operations were carried on in the buildings, a large part of the work, in addition to storage, was done out of doors and over all, or practically all, of the property. Among other things, gasoline and other fuels have been stored above ground in various tanks with capacities as great as 6000 gallons. By the use of heavy moving equipment these tanks have been moved from place to place, practically all over the premises, as demanded by the activities of the time.
In 1942 the county adopted the zoning ordinance in question, covering an area of 12 square miles. By this ordinance defendants' land was divided into three zones; partly 'C-1', which permitted retail business only; partly 'C-2', which permitted retail and wholesale merchandising and light manufacturing not to exceed 10 h. p.; and the remainder in 'R-2a', which permitted residential use, farming, country clubs and cemeteries. The zone lines were so drawn as to split several of defendants' buildings devoted to manufacturing purposes, as well as their storage and work yards, so that part could be used for general merchandising and light manufacturing while the remainder could be used only for farming, residences, country clubs or cemeteries. No heavy industrial use such as that carried on by the defendants was provided for within the 12 square mile area. This ordinance further provided that any existing lawful use of land, although it did not conform to its provisions, might be continued.
In 1948, the defendants installed a retail service station on a part of their land, zoned as 'C-1' and permitting that use. They also installed four storage tanks, each having a capacity of 12,000 gallons, near the permitted service station but about 50 feet within the area zoned for residence and cemeteries. They were installed above ground on a concrete base 10 feet wide and 54 feet long.
The plaintiff then brought this section to enjoin the use of these four tanks and to require their removal. The defendants answered and sought declaratory relief. It was conceded by the plaintiff at the trial that no claim was made that these tanks are a hazard to the neighborhood or constitute a public nuisance, and that 'the presence of these tanks in a residence zone is the only issue, as far as we are concerned.' The court found that beginning in the year 1938 and continuously thereafter the defendants have used all of said real property, except for a small described parcel which is not material here, for heavy industrial purposes including those above named; that they have made use of all of that land as a unit to be used in its entirety for the convenient operation thereon of the said heavy industrial purposes and uses; and that the portion of this land upon which said tanks are situated is within the portion of said lands which the defendants have continuously, since 1938, used for such heavy industrial purposes. As a conclusion of law, the court found that the provisions of this zoning ordinance, insofar as they purport to prohibit or restrict the use of said lands for heavy industrial purposes, including the use and purposes above mentioned and other heavy industrial uses and purposes which are not more detrimental to the neighborhood than the uses heretofore made of said lands, are unreasonable and are not effective to prohibit or restrict any of said uses or purposes, including the use of said four tanks for the storage of fuels; and that as to said lands, with the exception above noted, the defendants have a vested right to continue to use the same for all heavy industrial uses and purposes which are not more detrimental to the neighborhood than the uses heretofore made of said lands. Judgment was entered accordingly and the plaintiff has appealed.
While the appellant recognizes that the evidence amply discloses such a prior use of most of the respondents' land, it is contended that it is not sufficient to support a finding of such use with respect to a small area at the easterly side of respondents' land, upon which these tanks are located. It is further contended that, in any event, no permanent structures had been erected on this part of the property prior to 1948; that any use of this part of the property prior to 1942 had been merely for the storage of heavy materials and possibly for storage of gasoline and fuels in portable tanks; that the erection of permanent tanks was an extension of the former use which is not permitted by law; and that the court's conclusions of law are, therefore, erroneous and contrary to law. The first of these contentions is based upon a conflict in the evidence and is without merit. The respondents' evidence, which the court accepted, was sufficient not only to show that this entire property was being used as a unit for these purposes, but to show that the specific portion of the property here in question had been so used for the storage of both heavy materials and of fuels in large tanks, these tanks having been moved about from time to time by the use of heavy moving equipment.
The important question here is as to whether an extension of the nonconforming use here appears, as a matter of law, which is sufficient to require a reversal of the judgment. The appellant relies on such cases as Sunny Slope Water Co. v. City of Pasadena, 1 Cal.2d 87, 33 P.2d 672, and O'Rourke v. Teeters, 63 Cal.App.2d 349, 146 P.2d 983, as having modified the holding in Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14, to the effect that a landowner may continue with an existing business after the adoption of a zoning ordinance. It is argued that under the later decisions a preexisting nonconforming use cannot be extended and must be confined to the existing building, and that it cannot be extended to an adjoining lot. It clearly appears from the decisions, as a whole, that each case must be decided upon its own facts and that various circumstances affecting the particular property and the surrounding area must be taken into consideration. From its inherent nature the business here in question could not be, and was not, confined to a building or buildings. The business was developed as a unit in accordance with the original purpose to use the entire lot, and the particular area here in controversy was a part of that lot and was not an adjoining lot. The fact that this lot consisting of 20 acres is a part of an area of about 60 acres without cross streets, is a material consideration. The fact that a business of this nature was established some years before the zoning ordinance was adopted, and that this ordinance which covers 12 square miles of unincorporated territory made no provision for such a business, except by permitting it to continue where it was, should also be considered.
In the case of In re White, 195 Cal. 516, 234 P. 396, a zoning ordinance was held to be unreasonable and void since no adequate provision for a business district was made. In Dobbins v. City of Los Angeles, 195 U.S. 223, 25 S.Ct. 18, 49 L.Ed. 169, it was held that a zoning ordinance was ineffective as against a gas works in the course of construction although no actual use had yet been made. In Wilkins v. City of San Bernardino, 29 Cal.2d 332, 175 P.2d 542, 548, it was pointed out that zoning ordinances have been held invalid and unreasonable as applied to particular property 'Where the zoning ordinance attempts to exclude and prohibit existing and established uses or businesses that are not nuisances.' In Bernstein v. Smutz, 83 Cal.App.2d 108, 188 P.2d 48, it was held that where a zoning ordinance is in fact unreasonable as applied to particular land it cannot be enforced. In Re Smith, 143 Cal. 368, 77 P. 180, it was held that, because different conditions exist, county zoning ordinances will be scanned with a more critical eye than those affecting cities.
Applying these rules to the facts of the instant case it cannot be held, as a matter of law, that the use of storage tanks placed on a concrete base was such an extension of the prior use of large tanks placed on heavy skid timbers as compels a reversal of the judgment, or that the court erred in holding that the zoning ordinance in question was unreasonable if interpreted and applied as contended for by the appellant. This particular land had previously been used for the above-ground storage of fuels, in connection with the use of the tract for various industrial purposes, and there is nothing about the present storage in well-constructed tanks which necessarily affects the neighborhood more adversely than the previous storage in tanks placed on timbers instead of concrete. The question as to any extension of the use was one of fact, and the court's conclusion and holding is sufficiently sustained by the evidence. Moreover, under the circumstances here appearing no error appears in connection with the court's conclusion with respect to the reasonableness of the ordinance, as applied to this land.
A further question with respect to an unreasonable administration of the zoning ordinance here appears. While the ordinance made no provision for heavy industrial purposes within the area it covered, the appellant has subsequently recognized the necessity therefor, and has administered the ordinance accordingly with respect to other lands in the immediate neighborhood. The evidence here discloses that more than 50% of the property in an area having a radius of about two blocks in every direction from this particular spot is now being used for heavy industrial uses, under variances permitted and granted by the appellant. Among such other surrounding businesses are: a blacksmith shop which was permitted to expand into extensive manufacturing and the building of truck trailers and semi-trailers; a cement-block manufacturing plant; a wholesale and retail lumber yard; an automobile wrecking yard; a planing mill; a butane filling station; a rug cleaning establishment; and a large electrical substation. All of these were prohibited by the ordinance, but were permitted by variances granted. At the same time the respondents' request for a variance was denied. While this matter may not be conclusive in itself, it has a material bearing on the problem before the court.
The facts having been decided adversely to the appellant, and the court's conclusion as to the applicability of the ordinance to the respondents' property being reasonable under the circumstances shown, it cannot be held in this equitable action that the appellant was entitled, as a matter of law, to the drastic relief here sought.
The judgment is affirmed.
GRIFFIN, J., concurs. --------------- * Subsequent opinion 234 P.2d 972.