Paramount Rock Co. v. San Diego County

• Decision Date: 21 April 1960
• Citation: 180 Cal.App.2d 217,4 Cal.Rptr. 317
• Parties: PARAMOUNT ROCK CO., Inc., a corporation, and Sierra Sand Company, a corporation, Petitioners and Appellants, v. COUNTY OF SAN DIEGO, a body politico, Board of Supervisors of the County of San Diego and Frank A. Gibson, David W. Bird, Robert C. Dent, DeGraff Austin and Dean E. Howell, as members of said Board of Supervisors, Planning Commission of the County of San Diego and Frank O. Culy, C. J. Martin, Warren K. Hooper, Stuart Green, George V. Johnson and Gilbert Ray, as members of said Planning Commission, and William E. Sweikert, a real party in interest, Respondents. Civ. 6171.
• Court: California Court of Appeals Court of Appeals

Page 317

4 Cal.Rptr. 317

180 Cal.App.2d 217

PARAMOUNT ROCK CO., Inc., a corporation, and Sierra Sand Company, a corporation, Petitioners and Appellants, v. COUNTY OF SAN DIEGO, a body politico, Board of Supervisors of the County of San Diego and Frank A. Gibson, David W. Bird, Robert C. Dent, DeGraff Austin and Dean E. Howell, as members of said Board of Supervisors, Planning Commission of the County of San Diego and Frank O. Culy, C. J. Martin, Warren K. Hooper, Stuart Green, George V. Johnson and Gilbert Ray, as members of said Planning Commission, and William E. Sweikert, a real party in interest, Respondents.

Civ. 6171.

District Court of Appeal, Fourth District, California.

April 21, 1960.

Hearing Denied June 14, 1960.

Robert Thorn, San Diego, for appellants.

Henry A. Dietz, County Counsel, San Diego County and Robert G. Berrey, Deputy County Counsel, San Diego, for respondents.

COUGHLIN, Justice.

This is an appeal from a judgment arising out of a proceeding contesting the validity of a zoning ordinance of the County of San Diego and its applicability to certain land.

Paramount Rock Co., Inc., hereinafter referred to as 'Paramount', is the owner, and the Sierra Sand Company, hereinafter referred to as 'Sierra', is the lessee of 76 acres of land in a river bed in the unincorporated area of San Diego County upon which is located a sand and gravel pit, a concrete premixing plant used in the preparation of ready-mixed cement, a rock crushing plant, a tailings pool area, rest rooms, a shop, an employee's lunch room, and a quonset hut.

The site contains large deposite of sand suitable for use in the preparation of plaster and concrete. A sand pit has been operated thereon since 1916, resulting in the removal of substantial quantities of sand. However, no rock or gravel for use in making concrete exists on the property.

On August 9, 1948, the site became subject to San Diego County Ordinance No. 593 (New Series), as amended by Ordinance No. 786 (New Series), which prohibited its use for the 'operation of rock quarries, sand and gravel pits, rock crushing plants or stationary asphalt paving plants unless a permit therefor had been granted by the Board of Supervisors'. However, without objection, the site continued to be used as a sand pit for the purpose of removing sand therefrom.

In November, 1955 'Sierra' commenced construction of a concrete premixing plant on the property, and in January, 1956 completed its construction and began its operation. No permit to operate was required therefor as this type of plant was not within the scope of Ordinance No. 593.

'Sierra' is engaged in the ready-mix concrete business. Its production operation involves the premixing of sand, crushed rock, gravel and cement in a dry state which, after mixing, is loaded into trucks equipped to mix the contents with water to form concrete in the course of delivery. During the period between January, 1956 and June, 1958 sand was obtained from the site, transported by truck to a sand washing and processing plant located on nearby property of another owner, washed and processed, and then returned by truck to the site and placed in a hopper; gravel and crushed rock were purchased from rock crushers located outside of and transported by truck to the site and placed in a hopper; bulk cement likewise was purchased from outside sources, transported by truck to the site, and placed in a hopper; and thereafter, by proper equipment, these ingredients were taken from the various hoppers, delivered to the premixing plant, mixed together and placed in transit-mix trucks.

In December 1956 the site became subject to the county zoning regulations contained in Ordinance No. 1402 (New Series) which placed it in an agricultural zone. Property within such a zone was not permitted to be used for a sand and gravel pit, a concrete premixing plant, or a rock crushing plant unless excepted from the operation of the ordinance by principles governing existing nonconforming uses, or pursuant to a special use permit. Sections 509 and 510 of the ordinance authorized the continuance of nonconforming uses existent at the time of its application to any subject property. Section 480 thereof provided for the use of property for rock, sand and gravel borrow pits and quarries, for rock crushing plants and for processing decomposed granite, soil, rock, sand or gravel. The ordinance places such uses in an unclassified category, because they possess characteristics of such unique and special form as to make impracticable their being included automatically 'in a designated zone'; declares that 'the authority for the location and operation thereof shall be subject to review and the issuance of a special use permit'; sets up a procedure for the application, hearing and review incident to obtaining such a permit; and prescribes a standard by which the granting thereof shall be judged. At the time the zoning ordinance was extended to the property in question the sand pit and the concrete premixing plant were in operation. A year later, i. e., December, 1957, 'Sierra' commenced construction of a rock crushing plant on the site; in June, 1958 commenced operation of this plant, and since that time has continued to construct, modify the construction of and operate the same. As a result, since this latter date the rock, gravel and sand used in operating the concrete premixing plant are crushed, washed and processed on the site. Rock material processed by the crusher is obtained from a quarry about three miles distant; and sand obtained from the site is combined with sand obtained from the rock crushing process for a desired mixture.

The rock crushing plant is larger than the concrete premixing plant; is described as consisting of a sand and gravel unit, which sizes and washes sand, gravel and crushed rock, and a rock crushing unit which crushes the rock; consists of a system of crushers, vibrating screens, washing devices, electric motors, and conveyor belts; has a replacement cost of $186,000 as compared to a replacement cost of $65,000 for the premixing plant; uses 576,000 gallons of water per day and requires 250 horsepower to operate as compared to 21,000 gallons and 30 horsepower respectively, for the premixing plant; and occupies an area about twice that occupied by the premixing plant.

The county's building ordinance required the issuance of building permits preliminary to the construction of such a concrete premixing or rock crushing plant; however, 'Sierra' did not apply for or obtain any building permit to construct the concrete premixing plant, nor a building permit or special use zoning permit for the construction and operation of a rock crushing plant. Since construction of the latter, an application for a special use permit has been made pursuant to prescribed regulations; the granting thereof was recommended by the Planning Commission, but denied by the Board of Supervisors.

Before 1955 an attempt was made to use the site for farming purposes but it was found to be unsuited therefor although lands similarly situated in the river bed have been used for 'golf courses, dairies, riding stables, cattle grazing, etc.'

The rock crushing plant on the site is located 1,000 feet from Woodside Avenue known as State Highway 67; approximately 1,300 feet from an elementary school to the southeast; about 1,050 feet and 1,500 feet respectively from a junk yard and a rest home each of which is adjacent to Woodside Avenue. A golf course is adjacent to a portion of the northerly boundary of the property.

There are 14 concrete premixing plants in the County of San Diego similar in type to that operated by 'Sierra'. Of these, 6 operate with a rock crushing plant on the site and 8 operate without such a plant on the site. As to the latter, aggregate used in the operations is hauled varying distances, including 3, 9, 10, 18, 21 and 50 miles.

Petitioners filed a petition for an injunction and also for writs of mandate and prohibition, however, any contention on appeal respecting denial of their requests for writs of mandate and prohibition have been abandoned and the judgment is contested only insofar as it denies injunctive relief. The application for the writs was directed to the proceedings involving the request for a special use permit. The application for injunction sought to restrain respondents 'from any act directly or indirectly interferring with petitioners' operation of its rock crusher as an integral part of its pre-mixed concrete business on the site'. The case was heard upon an agreed statement of facts supplemented by the testimony of witnesses and the introduction of exhibits. The court found against petitioners and entered judgment accordingly from which this appeal has been taken.

The primary contention on appeal is that the zoning ordinance as applied to petitioners' property is unreasonable and invalid. Subsidiary contentions involve the nature and extent of petitioners' excepted nonconforming use; the alleged insufficiency of the findings in defining the same; the refusal of the trial court to admit evidence proving that petitioners had purchased and made plans for the erection of a rock crushing plant prior to the date the zoning ordinance was extended to their property; the further refusal of that court to admit evidence proving the amount of damage petitioners would sustain if required to comply with that ordinance; and the alleged invalidity of Ordinance No. 593.

'The constitutionality of the principle of zoning is no longer an open question, and a restrictive regulation in this field pursuant to a municipality's comprehensive and systematic plan of community development, when reasonable in object and not arbitrary in operation, will be sustained as within the legitimate exercise of the police power. Miller v. Board of Public Works, 195 Cal. 477, 488-490, 234 P. 381, 38 A.L.R. 1479; Zahn v. Board of Public Works, 195 Cal. 497, 503, 234 P. 388,...