People v. Synanon Foundation, Inc.

• Decision Date: 15 January 1979
• Citation: 88 Cal.App.3d 304,151 Cal.Rptr. 757
• Parties: The PEOPLE, Plaintiff and Respondent, v. SYNANON FOUNDATION, INC., Defendant and Appellant. Civ. 3743.
• Court: California Court of Appeals Court of Appeals

Page 757

151 Cal.Rptr. 757

88 Cal.App.3d 304

The PEOPLE, Plaintiff and Respondent, v. SYNANON FOUNDATION, INC., Defendant and Appellant.

Civ. 3743.

Court of Appeal, Fifth District, California.

Jan. 15, 1979.

As Modified on Denial of Rehearing Feb. 9, 1979.

Hearing Denied March 14, 1979.

Dan L. Garrett, Jr., Howard M. Garfield and David F. Gomez, Badger, for defendant and appellant

Jay W. Powell, Dist. Atty., Richard D. Sigmund, Deputy Dist. Atty., Visalia, for plaintiff and respondent.

OPINION

FRANSON, Associate Justice.

STATEMENT OF THE CASE ¹

This is an appeal from a pretrial order enjoining appellant from operating a private airport during the pendency of the action.

On May 31, 1977, respondent filed a complaint seeking to enjoin appellant's operation of an airport on its property in the Sierra foothills in the northeast corner of Tulare County. The complaint alleged that the airport constituted a public nuisance per se because it was being operated without a special use permit, in violation of Tulare County zoning ordinance No. 352. ²

The district attorney's application for an ex parte temporary restraining order was denied on June 22, 1977, on the ground that respondent had failed to allege or prove any injury that would result to respondent before the matter was heard on notice.

Respondent's application for preliminary injunction was heard on June 28, 1977. On September 21, 1977, the trial court rendered a decision, finding that the airport had been constructed and operated in violation of the law in that a permit was required under the county ordinance; that appellant had constructed the airport with notice that a permit was required, and that "upon balancing the equities," appellant should be enjoined from operating the airport pending trial. The court specifically noted that its decision concerning the violation of the zoning ordinance was for the purpose of the preliminary injunction only and that the decision should not affect the ultimate rights of the parties at trial. On October 27, 1977, the preliminary injunction was issued. Appellant filed a timely notice of appeal.

On November 8, 1977, appellant petitioned this court for a writ of supersedeas and a stay of the enforcement of the injunction. We granted the petition and stayed the injunction pending the determination of the appeal.

STATEMENT OF FACTS

Appellant is a nonprofit religious and charitable corporation established for the purposes of furthering the Synanon religion and the re-education of character disordered persons. In 1972 appellant purchased 360 acres of land in the western Sierra foothills near Badger, California, to serve as its executive offices and spiritual center. On June 30, 1976, appellant purchased an additional 1,790 acres of land near Badger known as the Stapp Ranch. The ranch included an 80-acre meadow at an elevation of 3,100 feet which appellant developed into a private airport. Appellant's investment in the land and improvements for the airport including a 4,450 foot long, 60 foot wide asphalt runway, adjacent hangars, buildings, airplanes and sailplanes was approximately $1,500,000.

The meadow where appellant's airport was established had been used for agricultural purposes for the 15 years immediately preceding appellant's acquisition of that property; however, from 1951 to 1961 it had been regularly used as a landing strip for agricultural flights. In 1944 appellant's predecessor had applied to the Tulare County Board of Supervisors for approval of the site as an airport and on November 28, 1944, the supervisors granted the approval. In 1945 the Civil Aeronautics Administration approved the site as a "designated landing area" pursuant to the federal Civil Aeronautics Act of 1938. On May 17, 1949, the Tulare County Board of Supervisors adopted a "Master Plan of Airports" depicting the location of the airport as an approved proposed site for a recreational/emergency airport. In 1959 the supervisors adopted ordinance No. 703 which provided that airports depicted on the 1949 master plan did not require a special use permit.

A new airport master plan was adopted by the supervisors in 1970. This plan recited that airports shown on the 1949 plan did not require a special use permit in the A-1 zone where appellant's airport is located. The 1970 plan also expressed a need for a fog-free recreational multi-purpose airport in a designated area in the foothills. Appellant's airport is in the designated area. Subsequent to the enactment of the 1970 plan, Tulare County zoning ordinance No. 352 was amended to provide that airports in conformity with the 1970 plan located in the A-1 zone do not require special use permits.

In the spring of 1976, when appellant began to explore the possibility of acquiring the Stapp Ranch, its representatives communicated with Robert Wall, the Planning Director and Chief Zoning Administrator of Tulare County. According to appellant's affidavits, Wall said that the subject site would be suitable for an airport and that a special use permit would not be required. According to the declaration of Mr. Wall, he merely advised appellant's representatives that he "hoped that they didn't need a permit for their proposed airport" and "recommended they look at the 1970 Airport Master Plan and the Tulare County Zoning Ordinance." Mr. Wall's declaration, however, is silent regarding any conversations which he may have had with appellant's representatives before July 6, 1976 the date the property was purchased. In a letter to Supervisor Fred Batkin dated July 13, 1976, Mr. Wall referred to a previous visit by appellant's representatives to his office and to their contention that appellant should be able to build an airport on the property without a permit. He states in his letter, "We are carefully checking their contention to see if that is true. It appears . . . that it is." (Emphasis added.) The letter further states, "It appears that (the) airport does conform to the General Plan." Appellant's agents declared that they acted in reliance on Wall's representations when they purchased the Stapp Ranch and began to develop the meadow for use as an airport.

Shortly after appellant's acquisition of the property, Mr. Wall formally requested an opinion from the county counsel's office on whether a use permit was required for the airport. On July 21, 1976, a representative from the county counsel's office delivered an oral opinion concerning this question at a board of supervisors' meeting attended by one of appellant's attorneys. The county counsel tentatively concluded that a use permit would be required because the subject airport was not in conformity with the 1970 airport master plan and, therefore, the amended zoning ordinance No. 352 required a permit.

On that same day, July 21, appellant's representative sought the county planning department's approval for the construction of a "general storage building" on the subject site. At that time Joe Hickman, a representative of the planning department, issued a building permit for a storage building; Hickman told Synanon's agent that the building could not be used for airport purposes without a use permit. The next day, Mr. Wall wrote to appellant recommending that if the building was intended for airport use, no time or money should be invested until the required special use permit was obtained. Wall also stated that it might be difficult to obtain the permit because a number of local citizens opposed the development of the airport.

On July 29, 1976, the county counsel's office issued its written opinion (a copy of which was sent to appellant's counsel) that a use permit would be required for the airport. In substance, the county counsel ruled that a permit was required for the airport because it did not comply with the 1970 master plan in that it was not a "public use" airport, i. e., one open to the public. Also, the county counsel opined that the airport would not qualify as an "agricultural airport" without a permit.

Nevertheless, appellant continued to develop the property for an airport. It contends that it had no alternative because it already had let the contracts for construction of the runway and buildings at the airport when it was advised that a permit would be required. By August, the grading for the strip was accomplished and a number of buildings had been added to the meadow.

Appellant filed an application for a special use permit on August 12, 1976. It maintains that the permit was unnecessary and that the filing of the application was merely a good will and political gesture. Five months later the application was denied by the county planning commission. Appellant appealed the denial to the board of supervisors, then later withdrew its appeal. Appellant states that the reason for the withdrawal of the appeal was its discovery that the airport site had been approved in the 1949 master plan and that Tulare County zoning ordinances exempted airports in conformity with the master plan from the permit requirement.

Appellant completed development of the airport and commenced using it for flights and educational activities. On May 25, 1977, the Tulare County Board of Supervisors adopted a resolution directing the district attorney to file this action.

DISCUSSION

This appeal presents the question of the standard to be applied by a trial court in ruling on an application for a preliminary injunction to enforce a zoning ordinance. We hold that absent a clear showing that the ordinance is being violated, the court must weigh the relative harm to the defendant if the injunction is issued as against the harm to the plaintiff if it is not issued; that only when the harm to the plaintiff outweighs the harm to the defendant should the injunction issue. Stated otherwise, it is only upon a clear showing that the zoning ordinance is being violated that a conclusive presumption of irreparable injury to the public arises so as to...