City of La Mesa v. Tweed & Gambrell Planing Mill

• Court: California Court of Appeals
• Writing for the Court: COUGHLIN; BARNARD, P. J., and GRIFFIN
• Citation: City of La Mesa v. Tweed & Gambrell Planing Mill, 304 P.2d 803, 146 Cal.App.2d 762 (Cal. App. 1956)
• Decision Date: 13 December 1956
• Parties: The CITY OF LA MESA, a Municipal Corporation, Plaintiff and Appellant, v. TWEED & GAMBRELL PLANING MILL, a California Corporation; Security Title Insurance Company, a Corporation, Trustee; August D. Gambrell and Noel P. Tweed, Beneficiaries, Defendants and Respondents. Civ. 5426.

Page 803

304 P.2d 803

146 Cal.App.2d 762

The CITY OF LA MESA, a Municipal Corporation, Plaintiff and Appellant, v. TWEED & GAMBRELL PLANING MILL, a California Corporation; Security Title Insurance Company, a Corporation, Trustee; August D. Gambrell and Noel P. Tweed, Beneficiaries, Defendants and Respondents.

Civ. 5426.

District Court of Appeal, Fourth District, California.

Dec. 13, 1956.

Rehearing Denied Jan. 8, 1957.

Hearing Denied Feb. 6, 1957.

Gilbert Harelson, City Atty., La Mesa, Jennings, Engstrand & Henrikson, La Mesa, for appellant.

Hillyer & Crake and Oscar F. Irwin, San Diego, for respondents.

COUGHLIN, Justice pro tem.

This is an appeal from a judgment in an eminent domain proceeding involving the taking of a 40 foot strip of land, which was part of a larger parcel belonging to the defendants. By its verdict, the jury found that the market value of the whole parcel was $70,000; the market value of the part proposed to be taken was $10,500; and the severance damage to the remaining property was $47,500. The plaintiff seeks a reversal because of error in instructing the jury; in the admission of testimony; and in refusing to permit the plaintiff to take the whole parcel.

In 1936, the Tweed brothers, predecessors in interest of the defendants, purchased the land in question, located along a railroad track in the city of La Mesa, and built a planing mill on the easterly half thereof, which was zoned for industrial use. The westerly half was zoned R-2 (Two-family residence). Four years later, after obtaining a variance permit, additional structures were erected on the westerly half, so that the planing mill covered the entire property.

In 1945, the city of La Mesa adopted Ordinance No. 265, changing the zoning laws; placing the subject property in an R-1 category (One-family residence); granting permission to continue nonconforming uses existing at the time the ordinance took effect, such as the defendants' planing mill; providing that any nonconforming building should not be 'enlarged, extended, reconstructed or structurally altered' excepting alterations or replacements within any 12 month period not exceeding twenty-five per cent of the building's assessed valuation; directing that if any nonconforming building should be damaged by 'fire, explosion, Act of God or Act of the Public Enemy' to the extent of more than seventy-five per cent of the assessed value, the nonconforming use should terminate.

In 1954 the city council caused a study to be made respecting the adoption of a master zoning plan and, following the recommendations made as a result of this study, in April, 1955, adopted a zoning ordinance for the entire city, known as Ordinance No. 618, which, among other things, zoned the property in question as R-3 (Multiple family residence); permitted the continuance of a nonconforming use and the changing of such use to another 'of the same or more restricted classification'; provided an amortization plan for the termination of all such uses; prohibited any structural alterations to nonconforming buildings, except those provided by law, and excepting also those nonconforming buildings destroyed to the extent of not more than fifty per cent of their replacement value where such destruction was caused by 'fire, explosion or other casualty or Act of God or the Public Enemy'; and expressly repealed Ordinance No. 265.

Under the amortization plan adopted by the later ordinance, a nonconforming use of wooden frame buildings, such as those on defendants' property, would terminate upon the expiration of twenty years from the date of construction of the nonconforming buildings, but, in no case, less than five years after notification by the city council.

As a further result of the master plan study it was decided to extend Nebo Drive one block between Allison Street and University Avenue, which would require the acquisition of the 40 foot strip of defendants' land.

Approximately a year prior to the adoption of Ordinance No. 618 the city acquired all of the property in the block where defendants' planing mill is located, except the defendants' property, and thereafter undertook negotiations to obtain the 40 foot right of way from them. Included in these negotiations was a proposal to reconstruct a part of defendants' planing mill on property which the city theretofore had acquired. Under this proposal it would have been necessary to zone the premises for an industrial use. However, the parties did not reach a specific understanding and, on February 23, 1955, the city terminated these negotiations; on April 26, 1955, enacted Ordinance No. 618; on June 30, 1955, filed this action; and on September 21, 1955, notified the defendants to terminate their nonconforming use within five years.

The 40 foot strip which the city seeks to acquire by this action would separate the defendants' planing mill from the railroad track and its siding privileges; would cause the removal of one building and a part of some of the other buildings on defendants' property; and would take 4,435 square feet from the 22,645 square feet of the whole parcel.

As applied to this case, Ordinance No. 618 authorized the city council to terminate the defendants' nonconforming use within five years. The buildings upon the property in question were constructed in 1936; had an estimated total economic life of 40 years; and, at the time of the adoption of the ordinance, had an estimated remaining economic life of 21 years. The planning expert who recommended the 20 year termination period provided in the ordinance was guided by the attitude of the Internal Revenue Department, Federal Housing Authority, banks and other loaning agencies respecting the estimated amount of use of an improvement, measured in units of time, necessary to effect a return on the investment therein. Based on the opinion of one of the expert witnesses, the present value of the improvements is $43,000.

The property to the north, east and south of the block in which the defendants' mill is located is zoned for either commercial or industrial uses.

The planning consultants employed by the city believed that the block in which the defendants' property is situated eventually should be used as part of a civic center, but recommended that, for the time being, it should be zoned for professional business purposes, which would act as a buffer between the adjoining commercial and residential zones.

The trial court held that the amortization provisions of Ordinance No. 618 were unconstitutional. For this and other reasons, the jury were instructed to disregard the provisions of that ordinance in determining the value of the property under consideration.

Comprehensive zoning is a legitimate subject for legislative consideration under the police power, and zoning ordinances which are reasonable in object and not arbitrary in operation constitute a valid exercise of that power. Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14; Beverly Oil Co. v. City of Los Angeles, 40 Cal.2d 552, 557, 254 P.2d 865; Livingston Rock & Gravel Co. v. County of Los Angeles, 43 Cal.2d 121, 126, 272 P.2d 4.

Such ordinances ordinarily except from their operation existing lawful uses in conflict therewith, generally referred to as nonconforming uses, because of the questionable constitutionality of legislation which would terminate such uses forthwith. Jones v. City of Los Angeles, supra, 211 Cal. 304, 295 P. 14; County of San Diego v. McClurken, 37 Cal.2d 683, 686, 234 P.2d 972; Livingston Rock & Gravel Co. v. County of Los Angeles, supra, 43 Cal.2d 121, 127, 272 P.2d 4.

Zoning legislation looks to the future, and may effect the eventual liquidation of nonconforming uses, Livingston Rock & Gravel Co. v. County of Los Angeles, supra, 43 Cal.2d 121, 127, 272 P.2d 4; County of San Diego v. McClurken, supra, 37 Cal.2d 683, 687, 234 P.2d 972; Jones v. City of Los Angeles, supra, 211 Cal. 304, 309, 295 P. 14; Ricciardi v. County of Los Angeles, 115 Cal.App.2d 569, 576, 252 P.2d 773, providing the method of operation is not unreasonable or arbitrary. To this end, provisions which preclude the extension or enlargement of such uses, forbid resumption of a use when terminated, or provide a reasonable time within which the use must cease have been sustained as a valid exercise of the police power. County of San Diego v. McClurken, supra, 37 Cal.2d 683, 687, 234 P.2d 972; Beverly Oil Co. v. City of Los Angeles, 40 Cal.2d 552, 254 P.2d 865; City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34. When the nonconforming use relates to the existence of a type of structure, provisions which look to the elimination thereof through obsolescence or destruction have been approved. Rehfeld v. City and County of San Francisco, 218 Cal. 83, 84, 21 P.2d 419. 'There is a growing tendency to guard against the indefinite continuance of nonconforming uses by providing for their liquidation within a prescribed period.' County of San Diego v. McClurken, supra, 37 Cal.2d 683, 686, 234 P.2d 972, 975.

The question for decision by this court is whether the provisions of Ordinance No. 618, adopting an amortization schedule for the liquidation of nonconforming uses in nonconforming buildings, are reasonable and not arbitrary as applied to the defendants' property.

Valid zoning legislation may provide for 'the eventual liquidation of nonconforming uses within a prescribed period commensurate with the investment involved.' Livingston Rock & Gravel Co. v. County of Los Angeles, supra, 43 Cal.2d 121, 127, 272 P.2d 4, 8. The fact that the value of an individual's property may be depreciated as a result of legislation enacted under the police power is not cause for invalidation, if the purpose is proper and there 'is no arbitrary and unreasonable application in the particular case.' Livingston Rock & Gravel Co. v. County of Los Angeles, supra, 43 Cal.2d 121, 127, 272 P.2d 4, 9; Beverly Oil Co. v. City of Los...