Markey v. Danville Warehouse & Lumber, Inc.

• Decision Date: 03 July 1953
• Citation: 259 P.2d 19,119 Cal.App.2d 1
• Court: California Court of Appeals
• Parties: MARKEY v. DANVILLE WAREHOUSE & LUMBER, Inc., et al. Civ. 15437.

Page 19

259 P.2d 19

119 Cal.App.2d 1

MARKEY v. DANVILLE WAREHOUSE & LUMBER, Inc., et al.

Civ. 15437.

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

July 3, 1953.

Carlson, Collins, Gordon & Bold, Robert Collins, Steven H. Welch, Jr., Richmond, for appellants.

Roscoe D. Jones, John D. Martin, Roscoe D. Jones, Jr., Oakland, for respondent.

NOURSE, Presiding Justice.

This is an appeal from a judgment permanently enjoining defendants from the processing of cement or the preparation, processing, compounding, manufacturing et cetera of ready mix concrete or of any paving or building material or any other product or the erection, operation or maintenance of any building, structure, machinery or equipment for the use in any such activity on certain premises in the unincorporated town of Danville, County of Contra Costa, as violative of the Zoning Ordinance of the County of Contra Costa, as amended, and as a public nuisance and a private nuisance as to the plaintiff and ordering certain defendants, who now appeal, to permanently remove from said premises any such building, structure, machinery or equipment, stated in the injunction in more detail.

The injunction relates to a ready-mix or transit mix concrete plant. The erection of the plant was commenced in the summer of 1948 and the first delivery from it was made in September, 1948. Ownership and operation of the plant have presented some changes and complications but as all persons and companies involved were joined as defendants by stipulation and their distinction is of no importance for this appeal we need not state names and qualities in detail.

The operation of the plant involves the use of nearly four acres of land, bunkers, hoppers, chutes, elevator or conveyor systems with electro motors, a fleet of transit mixing trucks and semi-tractor trucks, and a truck repair shop, all of which is now owned and operated by appellants, the Humphreys, husband and wife, and/or their corporation. Large quantities of sand, aggregates and cement are brought to the plant by truck or railway car and dumped in an underground hopper, from which they are transported to elevated bunkers, the sand and gravel by a conveyor system of endless belts, the cement by an enclosed bucket operation. But means of weighing hoppers the materials are weighed in the proportions required for the manufacture of the concrete to be delivered and through spouts dropped into mixing trucks. With the addition of water the actual mixing takes place in the revolving drum of the mixing truck when this truck has been or is being loaded. The mixing process requires only some minutes of revolving although further agitation may be required to keep the concrete plastic. Part of the mixing takes place during the driving on the premises. The mixing trucks are parked, cleaned and repaired on the premises.

On February 17, 1947, the Board of Supervisors of the County of Contra Costa adopted a Zoning Ordinance for the unincorporated area of said county, which ordinance took effect 30 days thereafter and thus was in effect when the concrete plant was erected. Under this ordinance and its later amendments the premises here involved are classified as 'General Commercial'. Section 4, subdivision D of the ordinance permits the following uses of property so classified: 'Subsection 1. All of the uses permitted in single family residential districts, multiple family residential districts, retail business districts, transition residential agricultural districts, forestry recreation districts, together with such uses as are permitted by the provisions of this ordinance after the granting of land use permits for the special uses authorized to be granted in any of the said districts.

'Subsection 2. All types of wholesale business, warehouses, railroads, railroad terminals and stations and freight houses, and automobile and air freight terminals.

* * *

* * *

'Land use permits for the special uses enumerated in subsection 1 of this subdivision * * * may be granted after application therefor in accordance with the provisions of this ordinance.'

None of the uses permitted in the districts enumerated in subsection 1, either with or without a land use permit includes the manufacturer or processing of concrete. The manufacture or processing of cement, one of the component materials of concrete, is mentioned in section 4, subdivision J, subsection 2 of the ordinance as an example of a use permitted in a Heavy Industrial District. The trial court found that the operation of the concrete mixing plant was a heavy industrial use of the property, prohibited by the Zoning Ordinance.

Section 5 provides in part that any use of any land, building or structure contrary to the provisions of the ordinance is a public nuisance, to be abated in an action instituted on order of the Board of Supervisors, in addition to other available remedies.

Section 8 of the ordinance permits the continuation of a lawful use existing at the time the ordinance becomes effective though not conforming to the provisions of the ordinance. At the time the ordinance became effective the business conducted on the premises was a wholesale business in hay, grain, feed, lumber and other building materials. Sand, gravel and cement were kept and stored at ground level in small quantities. No mixing of concrete for delivery took place on the premises. If mixing was required a hand mixer was sent to the site of the job. The trial court found that the cement mixing operations complained of were completely different from the small scale storage of materials carried on when the Zoning Ordinance went into effect and that prior to that time the property had never been subjected to any light or heavy industrial use.

The main contention of appellants, who do not attack the validity of any provision of the ordinance, is that the above findings are not supported by the evidence because no manufacture of concrete takes place at the new plant, but only the warehousing and selling of cement, aggregate and sand, permitted in Section 4, subd. D, subs. 2, supra, whereas the mixing, which constitutes the manufacture of concrete takes place in the trucks in transit. The contention is without merit.

In construing a zoning ordinance the same rules are normally applicable as in construing statutes in general, ...