Ricciardi v. Los Angeles County

• Court: California Court of Appeals
• Writing for the Court: SHINN
• Citation: Ricciardi v. Los Angeles County, 252 P.2d 773, 115 Cal.App.2d 569 (Cal. App. 1953)
• Decision Date: 28 January 1953
• Parties: RICCIARDI v. LOS ANGELES COUNTY et al. Civ. 18998.

Page 773

252 P.2d 773

115 Cal.App.2d 569

RICCIARDI v. LOS ANGELES COUNTY et al.

Civ. 18998.

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

Jan. 28, 1953.

Harold W. Kennedy, County Counsel, Edward H. Gaylord, Deputy County Counsel, Los Angeles, for appellants.

Holbrook, Tarr & O'Neill, Francis H. O'Neill, Los Angeles, for respondent.

SHINN, Presiding Justice.

Plaintiff Ricciardi is and since 1922 has been the owner of property at the northeast corner of Rosemead and Ramona Boulevards in the county of Los Angeles. In 1924 he erected at a cost of about $80,000 buildings and structures especially designed and equipped as a slaughterhouse and meat processing, packing, and refrigeration plant. In conformity with county ordinances he used the plant as originally constructed until 1945 when the State Department of Agriculture ordered him to make certain alterations in it. For the reason that his property had in the meantime been zoned for agricultural and residential purposes only, he made application to the Los Angeles County Regional Planning Commission for a permit to make the alterations. On November 1, 1945, the commission, after a hearing, approved the application and issued a permit for the alterations, but, without the consent of Ricciardi, incorporated therein a provision that his right to use and operate the premises as a slaughterhouse and packing plant should cease November 1, 1950. Ricciardi made the alterations at a cost of $30,000. On October 1, 1950, the county ordered him to cease doing business at the location on November 1st. He made an application for extension of his 1945 permit, which application was denied by the commission, and upon appeal was denied by the Board of Supervisors. He complied by closing his plant as ordered and brought this proceeding against the county and certain officers thereof in which he obtained an injunction restraining them from interfering with his operation of the plant. The defendants have appealed.

Our discussion of the case of Ricciardi is predicated upon a unique state of facts and is limited to a consideration of the operation of the ordinance upon the following principal facts: Ricciardi was engaged in a permitted business; he did not wish to enlarge it; he desired to make alterations in his building solely for the purpose of complying with an order of the State Department of Agriculture; denial by the county of a right to make the alterations would have deprived him of his right to continue in business.

At the time plaintiff constructed his plant and entered business there was no county ordinance forbidding the operation of a slaughterhouse at said location. It was altogether a legal operation.

Section 15 of Ordinance 1494, which was the original County Zoning Ordinance, adopted in 1927, did not disturb existing uses. ¹ Neither did the 1933 amendment which placed plaintiff's property in zone A-1 (agricultural and residential). They could be continued indefinitely. There have been many amendments of the zoning ordinance but none of them has departed in principle from the protection of existing uses recognized in the 1927 ordinance. They have granted automatic exceptions generally in the language of the latest enactment, § 531. ²

While it is material only as an aid to a better understanding of the general zoning scheme it may be mentioned that by amendments culminating in present § 531 the life of automatic exceptions has been specified for different types of buildings, and for industrial buildings (including slaughterhouses) has been fixed at 40 years, subject to revocation under the general procedure provided by the ordinance and also subject to extension.

In addition to automatic exceptions for existing uses there are other types of exceptions which may be granted upon application. The conditions upon which they will be granted are the same under present § 531 as they were under § 156 which was in force in 1945, namely, if: '(a) The exception is necessary for the preservation of a substantial property right of the owner; (b) Such exception will not be materially detrimental to the public welfare nor to the property of other persons located in the vicinity thereof.'

In the original zoning ordinance there was no provision for revocation of exceptions. In 1943 the ordinance was amended by the addition of § 75, reading: 'In addition to the other grounds set forth in this article a permit granted pursuant to this article, whether automatically or upon application, may be revoked and cancelled by the Board of Supervisors if it finds that the use is detrimental to the public health or safety or is a nuisance.' No other provisions related to exceptions granted automatically. These grounds for revocation were retained in later amendments. Sections 76 and 77 of the 1943 amendment provided that a permit (later referred to as an exception) could be revoked only after a public hearing before the commission.

In 1945 plaintiff held an automatic exception which would remain in effect unless and until it should be revoked by the Board of Supervisors. There was then in force § 123. ³ Plaintiff submitted with his application plans and specifications, which were approved by the commission and he was given a permit to make the alterations. However, without his consent the board incorporated the condition that he must discontinue his business by November 1, 1950.

The trial court found upon uncontroverted evidence that the alterations did not 'increase, alter or change the extent, kind, type or amount of use of said property from the legally established and proper use therefor' etc. This finding was of a fact to be considered in determining the nature of the consent that was given in 1945. Defendants say that when permission is requested to make an alteration in a building which is under an automatic exception it is to be treated as an application for an original exception and that it can be denied altogether or granted upon such terms as the Board of Supervisors see fit to impose. They cite § 155, which provides that upon an application for an exception 'the Board of Supervisors may except such property from any particular restriction or restrictions and permit the erection, alteration, reconstruction or enlargement of any building or structure thereon upon such terms and conditions as it deems proper under the particular circumstances shown to exist, if it finds that the facts are such as to entitle the petitioner to such an exception.' They contend that under the authority thus granted, the board, in approving an application for an exception, may limit its life to such term as it may deem reasonable. Granting, without deciding, that § 155 applies to automatic exceptions, the argument assumes that if approval is given for an alteration in a building that is under an automatic exception it amounts to the granting of a new exception. This may or may not be true. We shall see that it is not true in the present case.

The question as to the validity of the limitation of plaintiff's right to remain in business to five years involves nothing more than an interpretation of the various provisions of the ordinance and their application to the established facts. The county ordinance does not in terms make an exception of alterations which may become necessary in order to conform to other laws or the lawful orders of county or state authority. However, in judging of the legality of the proceedings which purported to terminate plaintiff's right to continue in business, we must assume the framers of the zoning ordinance knew that every business is subject to control in the interest of health and safety and anticipated that when some alteration in a structure should be demanded the ordinance would be interpreted and administered in a fair and reasonable manner.

The point is not argued and we do not decide whether the alterations demanded by state authority, which would not enlarge plaintiff's rights under the original exception, were such that the building would be 'structurally altered,' thereby within the literal meaning of § 123. If so, it does not follow that giving approval to the alterations amounted to the granting of a new exception. Although 'structurally altered' is an exceedingly broad term, it must be given a meaning which is consistent with the context in which it is used and the particular facts of the case. It must be recognized that there is a vast difference between alterations which would result in or facilitate enlargement of a use under an exception and those that would merely enable the owner to continue his business on the same scale but in a more efficient or more sanitary manner. A request for permission to make an alteration which is necessary in order to preserve the owner's original right under an automatic exception cannot in reason be subject to the limitations under which the Board of Supervisors may grant an exception, allow a structure to be altered so as to enlarge it or expand the original use, or directly or indirectly extend the life of the structure. It must be kept in mind that there is a fundamental difference between an exception that is granted as of right and one which may be granted conditionally.

We have seen that the zoning ordinance recognizes that automatic exceptions of substantial structures shall enjoy long life and that even a recognized life of 40 or 50 years may be extended. It is not the purpose of the law to disallow repairs or minor alterations in a building merely to hasten obsolescence or to render it impossible to continue a permitted use. Upon the other hand it is the general purpose to eventually end all nonconforming uses and to permit no improvements or rebuilding which would extend the normal life of nonconforming structures. County of San Diego v. McClurken, 37 Cal.2d 683,...