Perepletchikoff v. City of Los Angeles

• Citation: 174 Cal.App.2d 697,345 P.2d 261
• Parties: Isaak PEREPLETCHIKOFF, Petitioner and Appellant, v. CITY OF LOS ANGELES, a Municipal Corporation; The Board of Building and Safety Commissioners of the City of Los Angeles, Defendants and Respondents. Civ. 23949.
• Decision Date: 23 October 1959
• Court: California Court of Appeals

Page 261

345 P.2d 261

174 Cal.App.2d 697

Isaak PEREPLETCHIKOFF, Petitioner and Appellant, v. CITY OF LOS ANGELES, a Municipal Corporation; The Board of Building and Safety Commissioners of the City of Los Angeles, Defendants and Respondents.

Civ. 23949.

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

Oct. 23, 1959.

Hearing Denied Dec. 16, 1959.

Walter H. Young and Booth H. Bowers, Los Angeles, for appellant.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Marcus E. Crahan, Jr., Los Angeles, Deputy City Atty., for respondents.

ASHBURN, Justice.

This is an appeal from a judgment of the Superior Court of Los Angeles County denying a peremptory writ of mandate under § 1094.5 of the Code of Civil Procedure and affirming an order requiring demolition of appellant's commercial and hotel building located at the corner of East Fifth Street and San Julian Street in Los Angeles, which order was issued by the Board of Building and Safety Commissioners of said City on July 17, 1958. The Board's order unconditionally requires 'that said building be vacated and demolished.'

It rests not only upon findings of violation of the Los Angeles Municipal Code, but also upon the following: '3. The building by reason of materials of construction, obsolescence, dilapidated condition, deterioration, damage, and electric wiring is in such condition as to be a fire cause and is so situated as to endanger life or other buildings or property in the vicinity and provide a ready fuel supply to augment the spread and intensity of fire arising from any cause. 4. The building is maintained in violation of specific requirements of the Los Angeles Building Code and State Health and Safety Code. 5. The building is unfit for human habitation or occupancy within the terms of the State Health and Safety Code.'

The building was erected about 1883 and is a two-story wood structure. The second floor was designed and used as a hotel consisting of 21 rooms; the ground floor is occupied by a restaurant and bar and a secondhand store. On demand of the city's Health Department the second story was vacated on February 17, 1958, all entrances thereto were barricaded and it has remained in that condition at all times since said date. The building is situated in Fire District No. 1 and the Building Code requires that two-hour fire resistant outside walls be installed in new buildings.

The City has power, aside from the Municipal Code, to abate public nuisances. Civ.Code, § 3494; Los Angeles City Charter, § 2 subds. (4), (6), (11)(a), 11(n); 36 Cal.Jur.2d § 79, p. 564; Nerio v. Maestretti, 154 Cal. 580, 98 P. 860; McQueen v. Phelan, 4 Cal.App. 695, 697, 88 P. 1099; Eaton v. Klimm, 217 Cal. 362, 372, 18 P.2d 678; City of Turlock v. Bristow, 103 Cal.App. 750, 755, 284 P. 962; People By and Through City of South San Francisco v. Vasquez, infra, 144 Cal.App.2d 575, 576-577, 301 P.2d 510.

Ordinance No. 100,677, amending certain portions of the Municipal Code, says in § 96.100, under the caption 'Declaration of Purpose': 'It is the purpose of the provisions of this division to provide a just, equitable, and practicable method, to be cummulative with and in addition to any other remedy available at law, whereby buildings or structures which are dilapidated, unsafe, dangerous, insanitary, or are a menace to the life, limb, health, morals, property, safety and general welfare of the people of this City, or which tend to constitute a fire hazard, may be required to be repaired, vacated or demolished.' (Emphasis added.)

The proceeding before the Board of Builing and Safety Commissioners was had pursuant to and in accordance with Ordinance No. 100,677. No claim of want of notice or of any unfairness in the hearing is advanced by appellant, whose counsel freely cross-examined all witnesses. Only one witness was produced by appellant, Mr. Ray Bennett, and his testimony related only to the matter of repairs made to the building over the years.

The Board made seven findings, three of which are quoted above; the other four were directed at violations of the portion of the ordinance known as the Building Code. ¹ The evidence amply sustains all of the seven findings. The support for the quoted paragraphs is summarized in the trial judge's written memorandum as follows: 'The evidence received in our case under oath pursuant to question and answer (except as to reports required by city ordinance, for which proper foundation was laid and as to which cross-examination took place at length) proved, without substantial contradiction, that as to the building under consideration there were hazards and deficiencies with respect to wiring, lath, plaster, brick, sash, doors, corridors, weight-bearing beams; also there was distortion, settling, lack of clearance; structural deficiencies existed; there were over-loads, insufficient footings, plumbing deficiencies; there was vermin infestation, filth, a lack of reasonable toilet and washbowl facilities; there was insufficient ventilation, a lack of bracing, dry rot, etc.; there was a lack of hot water, there was insufficient heating, etc. It appears that the replacement cost would be nearly $40,000 and that recondition for normal occupancy would cost in excess of $30,000. The two-hour fire wall cost was not a large or sufficient percentage of this.' The formal finding is: 'The respondent Board acted independently and properly, reviewed the entire record, and applied correct standards in reaching its conclusion, based upon substantial evidence in light of the whole record, that petitioners said buildings located at 318-324 East Fifth Street, and 501-509 San Julian Street, Los Angeles, California, is a public nuisance, is unsafe, substandard, nonconforming, a fire hazard, and a menace to life, limb, property and the safety and welfare of the community, and that structure cannot be reasonably repaired; that it must be demolished.'

This evidence and these findings would support an order of demolition of an existing public nuisance without reference to the ordinance. See, §§ 12510, 15024, 17821, Health and Safety Code; People v. Foerst, 10 Cal.App.2d 274, 275, 51 P.2d 455; People v. United Capital Corp., 26 Cal.App.2d 297, 299, 79 P.2d 186; People By and Through City of South San Francisco v. Vasquez, supra, 144 Cal.App.2d 575, 576-577, 301 P.2d 510. In the last cited case, at pages 577-578 of 144 Cal.App.2d at page 511 of 301 P.2d, it is said: 'Although evidence was received without objection as to different respects in which the building violated building legislation and ordinances, the decision that the building is a public nuisance is not based on findings that it violates any such legislation or ordinances but on the ground that the defects of the building 'are dangerous to the public health and safety and are offensive to the senses and constitute an extreme fire hazard to said premises and all the surrounding property.' As the undisputed fire and health hazards sufficiently justify the decision, we need not consider whether retroactive application of certain legislation or ordinances to the required changes would be legal or not--also considering the extent of said required changes--or whether the finding that the building is offensive to the senses is sufficiently supported by the evidence.'

However, in the case at bar the evidence and the findings of the Board concerning violations of the ordinance are so intermeshed with facts relating to common law nuisance that we consider appellant's attack upon the constitutionality of the ordinance as applied to his property to be one requiring consideration. Specifically, the department's experts testified substantially to the effect that the two-hour fire-resistant outside walls would be essential to proper repair or restoration of the building.

Appellant's main contention is thus stated in his brief: 'Appellant's remaining contention is that to order demolition of a building because it is made of wood, and lacks two-hour fire-resistant walls, is arbitrary, unreasonable, a taking of private property without due process and without compensation, and not a proper exercise of the respondent's 'police power." This is an attack upon § 91.1603(b) of the Municipal Code which says: 'Nonconforming Buildings. Alternations and repairs to a nonconforming building in a Fire District may be of the same type of construction as the existing building if the aggregate value of such repairs, in any one year, does not exceed 10 per cent of the replacement cost of the building.

'Alterations or repairs in excess of 10 per cent of the replacement cost of the building or structure may be made provided all of the repairs and the new construction conform to the materials and type of construction required for a new building of like area, height and occupancy in the same location.

'Whenever a nonconforming building or structure has been damaged, or is in need of repairs or alternations required by the Los Angeles Municipal Code in an amount exceeding 50 per cent of the replacement cost, the entire building or structure shall be made to conform to the Code or shall be demolished.'

It is to be noted, however, that the order for demolition of the building was not predicated solely upon the fact that 'it is made of wood, and lacks two-hour fire-resistant walls.' Those things entered into the conclusion that the structure should be torn down but they were only a part of the general conditions which spelled nuisance. The statement of Armistead v. City of Los Angeles, 152 Cal.App.2d 319, 326, 313 P.2d 127, 132, that 'the fact standing alone that a building within a fire district is of wooden construction will not justify an order of demolition by a city' is therefore inapposite. 'Despite their usefulness under some conditions, wooden buildings, and even shingle roofs, can be declared to be nuisances within urban areas.' City of Nokomis v. Sullivan, 14 Ill.2d 417, 153...