Pettitt v. City of Fresno

• Decision Date: 25 October 1973
• Citation: 110 Cal.Rptr. 262,34 Cal.App.3d 813
• Court: California Court of Appeals Court of Appeals
• Parties: William H. PETTITT et al., Plaintiffs and Respondents, v. The CITY OF FRESNO et al., Defendants and Appellants. Civ. 1681.

Page 262

110 Cal.Rptr. 262

34 Cal.App.3d 813

William H. PETTITT et al., Plaintiffs and Respondents, v. The CITY OF FRESNO et al., Defendants and Appellants.

Civ. 1681.

Court of Appeal, Fifth District, California.

Oct. 25, 1973.

As Modified on Denial of Rehearing Nov. 19, 1973.

[34 Cal.App.3d 815] Spencer Thomas, Jr., City Atty., Alan D. Davidson, Asst. City Atty., A. Grant Macomber, Senior Deputy City Atty., James A. McKelvey and Norton O. Nishioka, Deputy City Attys., Fresno, for defendants and appellants.

Leonard C. Hoar, Jr., Fresno, for plaintiffs and respondents.

OPINION

GEO. A. BROWN, Presiding Justice.

The principal question in this case is whether a municipality can be estopped to deny the validity of a building permit issued in violation of a zoning ordinance.

In 1963 William H. Pettitt and Loretta P. Pettitt, his wife (hereinafter 'Pettitts'), were contemplating the purchase of the premises at 3115--3117 North Wilson Street, Fresno, for the purpose of converting the existing building on the property into a beauty salon. The single-story building was divided into two parts with separate entrances and addresses on the west side of Wilson. 3115 North Wilson had approximately 560 square feet and was an apartment, and 3117 North Wilson had approximately 1200 square feet and was a vacant bread store.

The area in which the building is located was zoned for single-family residences. However, since the building existed at the time the zoning ordinance was adopted, 3115 had a permitted nonconforming use of multiple residential, and 3117 of retail commercial uses, both of which nonconforming uses would not terminate until June 11, 1980.

On December 16, 1963, pursuant to request, a letter was sent from the Planning Department of the City of Fresno (hereinafter the 'City') to the realtors with whom the Pettitts were corresponding for the purchase of the building. ¹ Shortly thereafter the Pettitts purchased the property.

On August 17, 1964, the Pettitts made application to the City for and received a building permit. On the application the Pettitts put '3115 No. Wilson, 3117 No. Wilson.' In the space provided for the description of the use of the building, the Pettitts inserted 'Beauty Salon,' thus indicating that the use at both 3115 and 3117 was to be a beauty salon. In the space provided for the description of the work to be done, they inserted the word 'Alterations.' They stated that the value of the work to be done was $5,000. At the time the permit was issued, notations were made on it by the Zoning Administrator of the City that it was 'F--2' occupancy and that 'This building is a non-conforming use.' F--2 occupancy signifies that a retail-commercial occupancy is permitted.

Upon issuance of the building permit, the Pettitts commenced work on the building; they moved the door which fronted on 3115 North Wilson to the south wall of the building, remodeled the roof and outer walls, and made certain electrical changes in both the 3115 and 3117 portions of the building. Additionally, they covered with wallboard a door wich had connected the interior of the two portions of the building. By late 1964 the Pettitts had exhausted their funds and were unable to finish the work planned for the 3115 portion of the building.

On February 5, 1965, the Pettitts, upon making an $85 deposit, received a temporary certificate of occupancy, and after the building and electrical inspectors approved of the work which had been completed a refund of the $85 deposit was made to them and a notation was entered: 'Job at 3115--17 N. Wilson Completed.' Thereupon, Pettitts commenced using the 3117 portion of the building as a beauty salon and the 3115 portion for storage in connection with the beauty salon operation. The trial court found that both of these uses were an integral part of the beauty salon operation.

In late 1965, without seeking or obtaining a new building permit, the Pettitts completed their planned redecoration of the interior of the 3115 portion of the building, removed the temporary wallboard which they had placed over the door dividing the two portions of the building, and commenced using the 3115 portion of the building for hair dryers.

In completing the total project the Pettitts expended $12,800 for materials and $8,000 in labor.

On May 11, 1967, a building inspector noted the work which had been done in late 1965 on 3115 North Wilson without a building permit and gave the Pettitts five days to obtain one. Between that date and January 6, 1969, the Pettitts exhausted without success, all of their administrative remedies before the City Director of Planning, the Zoning Appeals Committee, Planning Commission and the City Council to obtain a variance under the zoning laws on 3115 North Wilson to permit its use as a beauty shop.

Thereupon they filed this petition for writ of mandate in the court below, and after a trial without a jury the court ordered the City to refrain from revoking and to honor the building permit issued on August 17, 1964, and to refrain from interfering with Pettitts' use of 3115 as a beauty salon. The City has appealed.

In its findings of fact and conclusions of law the court in substance found and concluded that the Pettitts purchased the property in reliance upon the City's representation that both 3115 and 3117 North Wilson had a nonconforming right of use of C--1 retail commercial and that they would not have purchased the property except for such assurances; that the Pettitts reasonably relied, to their detriment, upon the issuance of the building permit for the use of 3115--3117 North Wilson as a beauty salon and spent substantial sums in reliance thereon and that the City is 'estopped from denying petitioners the right to use the entire building at 3115--3117 N. Wilson as a beauty salon, and that respondents (City) are legally percluded from revoking or modifying the rights granted under the building permit, . . .'

Upon this appeal the City has spent considerable effort to reargue the facts before this court. That effort must fail. We have reviewed the evidence and are satisfied that the court's findings are supported by substantial evidence; at that point our inquiry on this phase of the matter must end. As was said in Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, at pages 925--926, 101 Cal.Rptr. 568 at page 571, 496 P.2d 480 at page 483:

'In resolving the issue of the sufficiency of the evidence, we are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party (citations) and in support of the judgment (citation). All issues of credibility are likewise within the province of the trier of fact. (Citation.) 'In brief, the appellate court ordinarily Looks only at the evidence supporting the successful party, and disregards the contrary showing.' (6 Witkin, Cal.Procedure, . . . § 249, at p. 4241.) All conflicts, therefore, must be resolved in favor of the respondent. (Citation.)'

(See Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 382, 94 Cal.Rptr. 887.)

The existence of an estoppel is generally a question of fact for the trial judge, whose determination on the factual question is conclusive on appeal. (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305, 61 Cal.Rptr. 661, 431 P.2d 245.) It would serve no useful purpose to unduly lengthen this opinion by particularizing the evidence in detail which is supportive of the factual conclusions.

The City urges as one ground for reversal that the original permit dated August 17, 1964, expired ² long before the work on 3115 was restarted in late 1965 or early 1966 to change it from a beauty salon storage room to an area for hair dryers. Factually, it does appear that the expiration of the permit is undeniable; the trial court made no contrary finding. The court, however, specifically did not pass upon the legal effect of the failure to obtain a new permit because its holding that the City is estopped to deny the validity of the permit rendered it unnecessary to pass upon that question. ³

We likewise find it unnecessary to reach the point because of our conclusion that as a matter of law the City cannot be estopped to deny the validity of a permit or other representations respecting the use of property issued or made in violation of the express provisions of a zoning ordinance. We now pass to a discussion of that legal question.

It is indisputable that the letter of December 16, 1963, and the building permit issued on August 17, 1964, insofar as they authorize the use of 3115 North Wilson for a C--1 retail-commercial use, were in violation of the then existing zoning ordinance of the City. ⁴

It is now well recognized that in unusual cases estoppel may be applied against the government:

'It is settled that '(t)he doctrine of equitable estoppel may be applied against the government where justice and right require it. (Citation.)' (Citations.) Correlative to this general rule, however, is the well-established proposition that an estoppel will not be applied against the government if to do so would effectively nullify 'a strong rule of policy, adopted for the benefit of the public, . . .' (Citation.) The tension between these twin principles makes up the doctrinal context in which concrete cases are decided.' (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 493, 91 Cal.Rptr. 23, 45, 476 P.2d 423, 445.)

The court in Mansell then proceeded to quote from City of Imperial Beach v. Algert (1962) 200 Cal.App.2d 48, 52, 19 Cal.Rptr. 144, in illustrating the doctrinal tension referred to:

'The court said: 'The courts of this state have been careful to apply the rules of estoppel against a public agency only in those special cases where the interests of justice clearly require it. (Citations.) However, if such exceptional case does arise and if the ends of justice clearly demand it, estoppel can and will be applied even...