McCaslin v. City of Monterey Park

• Decision Date: 04 September 1958
• Citation: 329 P.2d 522,163 Cal.App.2d 339
• Parties: Lowry B. McCASLIN, individually and doing business as 'McCaslin Materials Company,' Plaintiff and Respondent, v. CITY OF MONTEREY PARK, a municipal corporation, George Brown and J. Y. Cordill, Defendants and Appellants. Civ. 22739.
• Court: California Court of Appeals Court of Appeals

Page 522

329 P.2d 522

163 Cal.App.2d 339

Lowry B. McCASLIN, individually and doing business as 'McCaslin Materials Company,' Plaintiff and Respondent, v. CITY OF MONTEREY PARK, a municipal corporation, George Brown and J. Y. Cordill, Defendants and Appellants.

Civ. 22739.

District Court of Appeal, Second District, Division 3, California.

Sept. 4, 1958.

Rehearing Denied Sept. 30, 1958.

Hearing Denied Oct. 28, 1958.

LeSage & Bowman and Thomas LeSage, Pasadena, for appellants.

Newlin, Tackabury & Johnston, George W. Tackabury, Frank R. Johnston, and Hudson B. Cox, Los Angeles, for respondent.

VALLEE, Justice.

Appeal by defendants from a judgment for plaintiff permanently enjoining defendants from enforcing the provisions of two zoning ordinances expressly designed to compel the discontinuance of the use of plaintiff's property as a decomposed granite quarry. The question is the validity, as applied to plaintiff's operations, of provisions of zoning ordinances of the city of Monterey Park.

Plaintiff, since 1937, has been the owner of a large tract of land in the city of Monterey Park, called the city, of which a portion comprising about 70 acres is now and since 1944 has been used as a site for mining decomposed granite. The property is located on the southeast boundary of the city limits. Substantially throughout its entire area the property is comprised of decomposed granite. The structures on the land used in connection with the operation consist of a roofed screening plant and several small buildings, all of which were on the land prior to 1950.

Contiguous to the northeasterly portion of plaintiff's property is a rifle range used by the city's police. On the east boundary line and just over the city boundary is a 10-acre nursery. Traversing the easterly portion in the city are high tension lead-in wires and poles of the Edison Company leading to the company's substation located immediately adjacent to plaintiff's property to the south, but separated by a street known as Potrero Grande. The Edison Company substation occupies about 80 acres. Immediately to the south of the Edison Company property is a dump and salvage operation, established in 1949; and in this same area to the southwest is a gravel pit and dump, which operation began in 1953. West of plaintiff's property is a residential area of single family dwellings which developed during the years 1947 to 1954. Contiguous to the property there is a ready-mix concrete plant. To the southeast there is a 145-acre cemetery, established about 1950.

The property was purchased by plaintiff in 1937. From that time until early in 1944 it was used exclusively for grazing purposes. The first zoning ordinance passed by the city was ordinance 349, approved March 12, 1938, which zoned plaintiff's property 'R-5' (residential-agricultural). Early in 1944 plaintiff leased the property to Dwain O'Neal for the purpose of mining decomposed granite under a contract he had with the Maywood Air Services Supply Depot to furnish them with base material. The Board of Adjustments of the city granted O'Neal a variance on July 17, 1944 permitting the processing and removal of decomposed granite from the property. This was followed early in 1945 by another lease of the property to Bryce for one year for mining decomposed granite under a similar variance granted the lessee by the city's Board of Adjustments on April 10, 1945.

On June 25, 1945 the city enacted ordinance 448 repealing the 1938 ordinance. Plaintiff's property was again zoned 'R-5'; however, under section 11(a) it was provided that 'Any existing use of any building, structure or premises at the time this ordinance or any amendment thereto becomes effective may be continued, providing such existing use is not in violation of any other ordinance or law.'

At the expiration of the year's lease Bryce continued operating the quarry on a month-to-month basis. Plaintiff returned from the service about September 1945 and continued the same type operation under the name 'McCaslin Materials Company.'

Some time in 1947 plaintiff was approached by the then mayor of the city, three councilmen, and an official of the Edison Company with respect to the sale of a portion of his land to the Edison Company for the erection of an electrical substation. Plaintiff advised them that as his property was zoned residential-agricultural, the locating of a substation would require rezoning and he could agree to sell some of the land to the Edison Company only if the property were zoned industrial. It was thought that the Edison Company's improvements would be advantageous to the city in realization of about $15,000 a year in taxes therefrom. At the mayor's suggestion plaintiff retained an industrial real estate salesman who worked with the city attorney in drafting an industrial ordinance.

On March 24, 1947 the city council enacted ordinance 477 amending the 1945 ordinance (448) creating, among other things, an industrial district zone which included all but a 200-foot strip on the westerly side of plaintiff's property. Plaintiff then sold about six acres to the Edison Company, in addition to two and a fraction acres previously granted as rights of way; and the electrical substation was built.

On December 8, 1947 an urgency ordinance (494) was adopted limiting the operation of gravel pits and quarries to daylight hours and declaring the operation of a gravel pit or quarry then operating within the city on Sunday and late and unusual hours of the night constituted a nuisance. Substantially the same type ordinance (524) was adopted November 8, 1948.

Effective January 19, 1950 the city council adopted a city-wide zoning ordinance (556), as a result of which plaintiff's property was rezoned from industrial to residential-agricultural. This ordinance eliminated all reference to industrial zones within the city and substituted therefor certain limited 'M-1' zones for light manufacturing. Section 9220 provided for continuance of nonconforming buildings and for continuance of their use for a period of their normal life, but in no event less than 20 years from their original construction. Section 9221 provided for the continuance for not more than two years of nonconforming uses of land where no structure thereon is employed therefor, ¹ and that no nonconforming use of land should be expanded or extended on the same property. Section 9226 ² declared the production and development of natural resources to be a special use permitted in any zone on condition that a permit for the location and operation thereof be obtained under the procedure set forth in the chapter relating to variances. Ordinance 556 is one of the two ordinances the validity of which is attacked by plaintiff as applied to him.

Plaintiff was not aware of this rezoning of his property to residential-agricultural until some time in 1953. On February 11, 1954 he filed an application for a special use permit and on March 4, 1954 the application was heard and denied by the city planning commission. On April 12, 1954 the city council denied plaintiff's application for the permit and the action of the planning commission was affirmed.

Despite these actions of the planning commission and the city council in denying the special use permit, during the entire period of plaintiff's mining operations he was issued each year a business license by the city for the operation of the gravel pit, including the calendar year 1956.

On January 9, 1956 sections 9221 and 9226 of ordinance 556 were amended by ordinance 727. Ordinance 727 is entitled: 'An Ordinance of the City Council of the City of Monterey Park Amending Certain Sections of the Monterey Park Municipal Code Relating to the Excavation and Processing of Decomposed Granite, Sand, Rock and Gravel.' It expressly prohibits the expansion or extension of nonconforming use of land to the same or adjoining property, limits the mining of decomposed granite under special use permits status to M-1 and M-2 zones only, provides for discontinuance of existing nonconforming uses within 60 days after the date such use becomes nonconforming, and declares that such mining operations in any zone other than M-1 and M-2 zones shall constitute a public nuisance. ³

The effect of the amending ordinance was to declare plaintiff's further operation of the quarry a public nuisance 60 days after its passage. ⁴

Plaintiff filed this action praying that ordinances 556 and 727 be declared unconstitutional and void as applied to him, and that their enforcement be enjoined. The city filed a cross-complaint praying that the ordinances be declared constitutional; that plaintiff be enjoined from using the land for mining decomposed granite; and that such use be declared a nuisance.

The trial court found: ordinance 727 'was directed specifically at plaintiff's operations and business and at no other business'; use of the property by plaintiff for mining decomposed granite is a permitted use under ordinance 477 which zoned the property 'industrial' in 1947; and such use does not constitute a public nuisance. The court concluded that ordinances 556 and 727 are unconstitutional as applied to plaintiff in that they prohibit the continuance of the mining operations and business which existed at the time they were passed, thereby taking from plaintiff a valuable property right without the payment of compensation. Judgment was in favor of plaintiff, and defendants were permanently enjoined from enforcing or attempting to enforce the ordinances as to him. Defendants appeal.

Defendants contend that ordinance 556 and amendatory ordinance 727, requiring the mandatory discontinuance of the non-conforming use after a period of 60 days, constitute a reasonable exercise of the police power under the facts and that such legislation is a valid exercise of such power as applied to plaintiff.

Plaintiff contends the ordinances may not be constitutionally applied to him so as to...