O'Mara v. Council of City of Newark

• Decision Date: 20 December 1965
• Citation: 238 Cal.App.2d 836,48 Cal.Rptr. 208
• Court: California Court of Appeals Court of Appeals
• Parties: Edward F. O'MARA, Plaintiff and Appellant, v. The COUNCIL OF the CITY OF NEWARK, Defendant and Respondent. Civ. 22178.

Page 208

48 Cal.Rptr. 208

238 Cal.App.2d 836

Edward F. O'MARA, Plaintiff and Appellant, v. The COUNCIL OF the CITY OF NEWARK, Defendant and Respondent.

Civ. 22178.

District Court of Appeal, First District, Division 2, California.

Dec. 20, 1965.

Hearing Denied Feb. 16, 1966.

Moore & Patton, Oakland, for appellant.

Charles B. Snow, Newark, for respondent.

AGEE, Justice.

Denied a writ of mandate by the superior court, directing the City Council of the city of Newark to set aside its finding that the nonconforming use of his property for residential purposes had been terminated by fire damage and to reconsider such finding in the light of the proper interpretation of the city's zoning ordinance, petitioner appeals from the judgment.

Petitioner owns a duplex residential building in a district in the city of Newark which, under a comprehensive zoning ordinance adopted February 16, 1956, was zoned for retail business. Under the terms of the ordinance the existing use of the building as a two-family dwelling was permitted to continue as a nonconforming use.

However, with respect to the right to such continued use, section 2-835 of the ordinance provides: 'If at any time any [such] building * * * is destroyed by fire, explosion, Act of God, or act of the public enemy to the extent of more than 75 percent of the assessed value thereof according to the assessment thereof by the Assessor for the fiscal year during which destruction occurs, then * * * the building and the land on which the building was located or maintained shall from and after the date of destruction be subject to all the regulations specified by this ordinance for the district in which the land and building are located.'

On January 4, 1958 the building was damaged by fire. It had been assessed by the Assessor for the fiscal year of July 1, 1957-June 30, 1958 at $400. The Assessor's assessed valuation of the building immediately after the fire was $200. The city refuses to allow the nonconforming use to continue on the ground that the building was 'destroyed' within the meaning of section 2-835.

The reasoning of the city is that it would cost more than $300 to repair the fire damage, thus the building was 'destroyed by fire * * * to the extent of more than 75 percent of the assessed value thereof * * *.'

On the other hand, appellant contends that, for a building to be 'destroyed' under said section, there must be a decrease in assessed value of more than 75 percent and that here the decrease is only 50 percent, i. e., from $400 to $200.

We think that appellant's interpretation is reasonable and that the city's interpretation would make the application of the section unreasonable, arbitrary and confiscatory.

The rationale behind the elimination of a nonconforming use when a certain percentage of a building has been destroyed by fire is well stated in State ex rel. Covenant Harbor Bible Camp v. Steinke (1959) 7 Wis.2d 275, 96 N.W.2d 356, 361-362, as follows: 'Evidently courts have considered that where a non-conforming use has been carried on in a building which has been accidently destroyed in large measure, it is not unreasonable to compel the owner to conform to zoning requirements thereafter. The investment in an improvement which may not be readily adaptable to a conforming use has been taken away from him by the accident and not by the ordinance. With the improvement substantially destroyed, the land on which it is located will presumably have approximately as much value for use in conformity with the ordinance as otherwise and the public interest in conformity with the ordinance will be served if he is not permitted to continue the non-conforming use.' (Emphasis added; see 2 Rathkopf, The Law of Zoning and Planning (3rd ed.) p. 61-15.)

In the case of Incorporated Village of North Hornell v. Rauber, 181 Misc. 546, 40 N.Y.S.2d 938, the ordinance under consideration provided as follows: 'If a nonconforming building or use, existing at the time this ordinance shall become effective, is subsequently changed to a conforming use, or is destroyed by fire, explosion, Act of God, or the public enemy to the extent of more than seventy-five per cent of its assessed valuation, such building or use shall not again be altered or rebuilt, except in conformity with the rules and regulations of the district in which such building is located.'

The court stated: 'The damage by fire was $350. The true value before the fire of the building and fixtures belonging to the realty was $1,500. It was destroyed to the extent of more than seventy-five per cent of the $300 appearing upon the roll as the assessed valuation, but less than twenty-five per cent of the true value of the structure. Does this render the application of the Zoning Ordinance to the Rauber sawmill unreasonable, arbitrary and confiscatory?' (P. 942.)

It was held that it did, the court stating that 'To enforce this provision of the zoning ordinance against the defendant Rauber in the manner contended for by plaintiff would be oppressive.' (P. 942.)

A recent Wisconsin case (State ex rel. Home Insurance Company v. Burt, 23 Wis.2d 231, 127 N.W.2d 270) involved a city ordinance which provided that any nonconforming building damaged by fire 'may be reconstructed and used as before if it be done within 12 months of such calamity, unless damaged to an extent represented by 50 percent of the assessed value * * * in which case reconstruction shall be in accordance with the provisions of this ordinance.'

There the assessed value of the building was $10,100, its fair market value was not less than $24,000, and the estimated cost of repair was $6,337.04. The court held that the application of the ordinance to such a situation was 'arbitrary and oppressive,' pointing out that the building had been 'damaged only to the extent of 26 percent of its stipulated market value, * * *.' (p. 276).

In the instant action, the Assessor's records show the 'present estimated value' (before the fire) as $1,786 and the 'estimated cost of replacement' as $5,104. At the time of the fire appellant was receiving a total monthly rental of $100 from the two tenants. The record before us contains little more upon which to base an evaluation of the subject building.

Even accepting the Assessor's estimated value, we find that, under the city's interpretation of section 2-835, a fire causing damage of more than $300, or 16.8 percent of such value, would automatically terminate the existing right to use the...