Kappadahl v. Alcan Pac. Co.

• Decision Date: 27 November 1963
• Citation: 35 Cal.Rptr. 354,222 Cal.App.2d 626
• Court: California Court of Appeals Court of Appeals
• Parties: Alfred KAPPADAHL et al., Plaintiffs and Appellants, v. ALCAN PACIFIC CO., a corporation, Edgar H. Haber and Barbara W. Haber, Defendants and Respondents. Phil H. CALABRESE and Muriel E. Calabrese, his wife, on behalf of themselves and all others similarly situated, Plaintiffs and Appellants, v. J. E. GOETZ and E. M. Carlsen, Building Inspectors for the County of Monterey, and Alcan Pacific Co., a corporation, Defendants and Respondents. Howard LOCKWOOD et al., Plaintiffs and Appellants, v. The BOARD OF SUPERVISORS OF the COUNTY OF MONTEREY, a political subdivision, and Thomson J. Hudson, Chester Deaver, Burt L. Talcott, Harold G. Henry and Frank Echeberria, constituting the members of the Board, and Alcan Pacific Co., a corporation, Defendants and Respondents. Civ. 20773.

Page 354

35 Cal.Rptr. 354

222 Cal.App.2d 626

Alfred KAPPADAHL et al., Plaintiffs and Appellants, v. ALCAN PACIFIC CO., a corporation, Edgar H. Haber and Barbara W. Haber, Defendants and Respondents.

Phil H. CALABRESE and Muriel E. Calabrese, his wife, on behalf of themselves and all others similarly situated, Plaintiffs and Appellants, v. J. E. GOETZ and E. M. Carlsen, Building Inspectors for the County of Monterey, and Alcan Pacific Co., a corporation, Defendants and Respondents.

Howard LOCKWOOD et al., Plaintiffs and Appellants, v. The BOARD OF SUPERVISORS OF the COUNTY OF MONTEREY, a political subdivision, and Thomson J. Hudson, Chester Deaver, Burt L. Talcott, Harold G. Henry and Frank Echeberria, constituting the members of the Board, and Alcan Pacific Co., a corporation, Defendants and Respondents.

Civ. 20773.

District Court of Appeal, First District, Division 1, California.

Nov. 27, 1963.

Popelka, Graham & Hanifin, by Geoffrey Van Loucks, San Jose, for appellants.

William H. Stoffers, County Counsel of County of Monterey, by Roy E. Anderson, Deputy County Counsel, Salinas, for respondents J. E. Goetz and E. M. Carlsen; Board of Supervisors of County of Monterey, Thomson J. Hudson, Chester Deaver, Burt L. Talcott, Harold G. Henry and Frank Echeberria.

Noland, Hamerly, Etienne & Fulton, by Myron E. Etienne, Jr., Salinas, for respondents Edgar H. and Barbara W. Haber and Alcan Pacific Co.

BRAY, Presiding Justice.

In a consolidated appeal in three cases, appellants in each respective case, who were plaintiffs or petitioners therein, appeal from adverse judgments in favor of the respective defendants.

QUESTIONS PRESENTED.

All three actions arise out of the granting by the Board of Zoning Adjustment of Monterey County, and its affirmance by the board of supervisors of that county, of a variance under the zoning ordinance, permitting Alcan Pacific Company, a corporation, ¹ to use a certain strip of property as a driveway to Alcan's rest home.

1. Does the filing of the subdivision map estop Monterey County from granting a variance permitting use of the property for road purposes?

2. Is the variance permit to use the strip as a roadway valid?

3. Validity of use permit.

4. Applicable to Calabrese only--Does an action for mandamus lie to question the issuance of a building permit allegedly in violation of a zoning ordinance?

RECORD.

Appellants are owners of land within 'Descanso Oak Estates' subdivision. Alcan is the owner of a 41-acre track of land adjoining Descanso Oak on which it intends to construct a rest home to be known as Carmel Hacienda Rest Home. ² Alcan also owns an easement for road purposes over a strip of land 60 feet wide in Descanso Oak running from the end of Via Mallora Oak running from the end of Via Mallorca boundary of the Carmel Hacienda tract. In December, 1959, Alcan applied to the planning commission for a use permit to build a rest home on its property which is contiguous with one of the boundaries of Descanso Oak. At that time Descanso Oak was zoned R1-A-B4 (first class residential), Carmel Hacienda was zoned K-G-B4 (residential-agricultural). The use permit to build the rest home was granted to Alcan upon certain conditions, and by amendment a condition was imposed, namely, that the 60-foot strip in Descanso Oak above mentioned be used for ingress and egress to the proposed rest home in Carmel Hacienda.

On the assumption that this use permit constituted a use permit for Alcan to use the strip in Descanso Oak, which was zoned for first class residential only, an action was brought by one Lane on behalf of himself and the other landowners in Descanso Oak, against the board of supervisors, Alcan, et al., seeking a writ of mandate to require the board of supervisors to set aside the use permit allowing the strip to be used as a private driveway. ³ In that action the court held, in effect, that the use permit granted Alcan related only to the zone established for Carmel Hacienda, allowing the building of a rest home there, and that the reference in the permit to the strip in Descanso Oak did not constitute a use permit to vary from the Descanso Oak zone but was a condition to the rest home permit. The effect of this decision was to require Alcan to apply to the zoning board for a variance from the Descanso Oak zone to permit the strip to be used for a roadway to the rest home.

About the same time that the Lane case was filed, one of the cases consolidated on this appeal was also filed. In this case, Kappadahl, et al., owners of property in Descanso Oak, sought an injunction and declaratory relief against Alcan, et al., to prevent Alcan from using the strip as a roadway under the above mentioned use permit. After the court's ruling in the Lane case, as will hereinafter appear, Alcan obtained a variance permit ⁴ from the zoning board, granting Alcan the right to use the strip as a roadway to Carmel Hacienda. The trial court found that this variance was valid, that Alcan could use the strip as a roadway with a bridge thereon, and that plaintiffs take nothing by their complaint. Plaintiffs appeal.

Before obtaining this variance permit, and on the assumption that the use permit above mentioned allowed it to use the strip as a roadway, Alcan applied to J. E. Goetz and E. M. Carlsen as Building Inspectors of the County of Monterey for a building permit enabling it to construct a bridge on said strip across the Carmel River. The building permit was granted. Thereupon the second suit involved here was filed, in which Calabrese and wife, owners of land in Descanso Oak, on behalf of themselves and all others similarly situated, sought a writ of mandate against Goetz and Carlsen as building inspectors (Alcan was joined) to compel the building inspectors to revoke the building permit. The court gave judgment for the defendants on the theory that the subsequent granting of the variance permit to Alcan validated the use contemplated by the building permit and made the issue moot. Petitioners appeal.

After the granting of the variance permit, the third action here involved was filed. Lockwood, et al., owners of land in Descanso Oak, sought a writ of mandate against the board of supervisors (joining Alcan) to compel it to rescind the variance permit on the ground that the variance permit was invalid because the hearings before the zoning board and the board of supervisors respectively were not conducted in the manner prescribed by law. The court found that the hearings and the variance permit were valid in all respects and denied relief. Petitioners appeal.

ADDITIONAL FACTS.

Additional to the facts hereinbefore set forth are the following: ⁵ Originally the area which later became Descanso Oak was zoned K-B4 (agricultural-residential). On October 4, 1955, a subdivision map of 'Descanso Oak Estates' was recorded, together with a declaration of establishment of protective restrictions. This provided, inter alia, that the property included in the subdivision should conform to the usages of a K-B4 district. The area which we have referred to as the strip is not designated on the map. (As will hereinafter appear, it was a part of two of the lots shown on the map.) No indication is given on the map that the strip was to be used as a roadway or in any manner other than as permitted in a K-B4 zone.

The area including both Descanso Oak and Carmel Hacienda originally belonged to Ivan Tweedie, Inc. One Haber and wife purchased from Tweedie the area in Carmel Hacienda which they later conveyed to Alcan and upon which the rest home complex was to be built. It was agreed between Tweedie and the Habers that as soon as the map of Descanso Oak was filed, Tweedie would deed to the Habers the strip in question, namely, the westerly 30 feet of lot 9 and the easterly 30 feet of lot 8, to give access to the proposed rest home from Via Mallorca, the cul-de-sac shown on the map.

Following the recording of the map, conveyances to Haber and wife were made of the easterly 30 feet of lot 8 and the westerly 30 feet of lot 9, as said lots are shown on the map. This made the strip in question. The conveyances contained an express reservation of a condition subsequent in favor of the grantor-subdivider to the effect that the strip was to be used for road purposes during the month of September 1975 or theretofore dedicated to the County of Monterey for road purposes. If the land was not so used, grantor was to regain full possession of the strip. Alcan succeeded to the rights of the grantees.

On January 7, 1957, the board of supervisors amended the zoning ordinance, putting the whole of Descanso Oak in a R1-A-B4 zone (first class single family residential 1-acre minimum). At the same time it reclassified Carmel Hacienda from K-B4 (agricultural-residential) to K-G-B4. This reclassification would permit the use of property in this zone for hospitals and rest homes if permit therefor were obtained.

As before stated, Alcan on January 12, 1960, was granted a use permit to construct a rest home on its property in this zone. Condition 3 in said permit stated: '3. That there be a 60 foot width right of way, being a part of the building site and serving only the one building site to the San Carlos Road.'

Thereafter, Alcan applied to the planning commission for an amendment to their use permit to provide an alternative condition to the use permit to the effect that Alcan could construct an access road over the strip and a bridge thereon, to give access to Alcan's property in Carmel Hacienda from Via Mallorca in Descanso Oak. Over the protest of the property owners in Descanso Oak the zoning board granted an amendment to the use permit and again over the property owners' protests, the board of supervisors approved the amendment. ⁶ It was this use permit as amended that the court in Lane, supra, held did not constitute a permit to use the strip in Descanso Oak for road purposes.

1. EFFECT OF MAP.

Appellants...