San Diego County v. McClurken

• Decision Date: 24 August 1951
• Citation: 234 P.2d 972,37 Cal.2d 683
• Parties: SAN DIEGO COUNTY v. McCLURKEN et al. L. A. 21701.
• Court: California Supreme Court

Page 972

234 P.2d 972

37 Cal.2d 683

SAN DIEGO COUNTY v. McCLURKEN et al.

L. A. 21701.

Supreme Court of California, in Bank.

Aug. 24, 1951.

James Don Keller, Dist. Atty., Bertram McLees, Jr., and Duane J. Carnes, Deputy Dist. Attys., San Diego, for appellant.

Harold W. Kennedy, County Counsel, and Edward H. Gaylord, Deputy County Counsel, Los Angeles, amicus curiae for appellant.

Bertrand L. Comparet, San Diego, for respondents.

TRAYNOR, Justice.

The County of San Diego brought this action to compel the removal of four gasoline storage tanks allegedly erected in violation of a county zoning ordinance. Judgment was entered for defendants, and the County appeals.

Defendants' property is about a mile from the center of Lemon Grove, a suburban area whose center is approximately 8 miles northeast of the business center of the City of San Diego. At the time of the filing of this action this area was predominantly residential with some local business and industry centered around the intersection of Broadway, the principal east-west arterial, and Imperial Boulevard, the principal north-south arterial. Business establishments were located east and west from this intersection along both sides of Broadway and were spottily distributed elsewhere throughout the area. Defendants' land is on the southwest corner of the intersection of Broadway and Massachusetts Avenue, north-south arterial approximately one mile from Imperial Boulevard. The land is rectangular in shape and extends 660 feet south from Broadway and 1,760 feet west from Massachusetts Avenue.

The trial court found that continuously since 1938 defendants have used their property, with the exception of a small part not material to this action, for heavy industrial purposes, including above-ground storage of gasoline and other fuels, storage of paint for industrial painting, wholesale storage and sale of lumber, storage of steel beams and parts of machinery for heavy manufacturing, storage of rock, sand, and gravel, storage of junk and old iron, manufacture of acetylene gas and metal bearings, automobile and truck wrecking, building and rebuilding of heavy machinery, boiler repair shop, commercial planing mill, sand blasting, welding, heavy manufacturing processes using up to 2,000 horsepower in the operation of machines, and general heavy construction contracting business. The court also found that defendants have used the entire premises as a unit in carrying out such uses, and that the part of defendants' land where the tanks in question are situated has been used for the foregoing industrial purposes. When defendants undertook this use of their land, the neighboring area was nearly all undeveloped, with virtually no residences.

In 1942 the County adopted Ordinance No. 268 (New Series) as part of a comprehensive zoning plan for the Lemon Grove area. This ordinance divided defendants' property into three districts. A retail business district, C-1, included the area extending south for 150 feet from the south property line on Broadway, thence from Massachusetts to the west edge of defendants' land; a wholesale business section, C-2, included approximately the west two-thirds of defendants' land, running south from the C-1 zone for an additional 330 feet; and a residential district, R-2-A, extending south from the C-1 zone, which included one-third of defendants' land.

In 1948 defendants erected a retail gasoline station near the intersection of Broadway and Massachusetts Avenue. The service station was within the area zoned for retail business, which permitted that use. Defendants also erected four tanks to provide storage facilities for the service station. Although the tanks are near the service station, they extend approximately fifty feet within the area zoned for residences. Before 1942 steel beams and trusses had been stored on this corner and there was a preliminary leveling of the land and a service road made thereon. There is no disagreement among any of the witnesses, however, that until the tanks in question were erected there were no permanent structures of any kind on this corner before or after 1942.

The trial court concluded that the tanks were permitted under a provision of the ordinance exempting nonconforming uses existing at the time of its adoption.

Section 17 of ordinance 371, incorporated by reference in ordinance 268 (New Series) provides: 'The lawful use of land existing at the time of the passage of this ordinance, although such use does not conform to the provisions hereof, may be continued; if such non-conforming use is discontinued any future use of said land shall be in conformity with the provisions of this ordinance.'

Such a provision is ordinarily included in zoning ordinances because of the hardship and doubtful constitutionality of compelling the immediate discontinuance of nonconforming uses. See Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14. 'The object of such provision is the gradual elimination of the nonconforming use by obsolescence or destruction by fire or the elements, and it has been frequently upheld by the courts.' Rehfeld v. City & County of San Francisco, 218 Cal. 83, 84, 21 P.2d 419, 420. There is a growing tendency to guard against the indefinite continuance of nonconforming uses by providing for their liquidation within a prescribed period. See, 35 Va.L.Rev. 348, 356; Standard Oil Co. v. City of Talahassee, 5 Cir., 183 F.2d 410, 413, certiorari denied, 340 U.S. 892, 71 S.Ct. 208; State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, 121 So. 613, certiorari denied 280 U.S. 556, 50 S.Ct. 16, 74 L.Ed. 612; State ex rel. Dema Realty Co. v. Jacoby, 168 La. 752, 123 So. 314.

Given the objective of zoning to eliminate nonconforming uses, courts throughout the country generally follow a strict policy against their extension or enlargement. ¹

The evidence most favorable to defendants is that in their nonconforming use they utilized fuel tanks that were moved on heavy skid timbers from place to place as they were needed. One tank had a capacity of 1,200 gallons, another 2,300 gallons, and the largest a capacity of 6,000 gallons. Now, however, they have four new tanks with a capacity of 12,000 gallons each, that are 32 feet high and 8 feet in diameter and are permanently located upon a rectangular concrete base 10 feet wide and 54 feet long. In erecting four new tanks double the size of the largest of the old, defendants have not only increased their fuel storage capacity more than five times but have permanently affixed the tanks within the area zoned for residences. Such a formidable expansion can hardly be viewed as a mere continuance of the nonconforming use consisting of the intermittent storage of lumber and scrap metal, preliminary grading, steel beam storage or even the use of movable tands 'all over the property, first one spot and then another' that may have occurred and then area in question. Even if the new tanks were used to supply power for the original industrial use, they would constitute an unwarranted enlargement of that nonconforming use. See Rehfeld v. City & County of San Francisco; City of Yuba City v. Cherniavsky; Piccolo v. Town of West Haven; De Felice v. Zoning Board of Appeals of Town of East Haven; Thayer v. Board of Appeals; Ware v. City of Wichita; Colati v. Jirout; Inspector of Buildings of Burlington v. Murphy; Town of Marblehead v. Rosenthal; Town of Burlington v. Dunn; Austin v. Older; Women's Christian Ass'n of Kansas City v. Brown; In re Botz; Home Fuel Oil Co. v. Borough of Glen Rock; De Vito v. Pearsall; Pisicchio v. Board of Appeals; People v. Giorgi; State ex rel. City Ice & Fuel Co. v. Stegner; Appeal of Yocom; supra, note 1.

The new tanks involve not merely an expansion of a nonconforming use but a new nonconforming use. The permitted use was for the storage of fuels to be consumed in supplying power as an incident to the industrial use; the new tanks are used as an incident to the service station use. The continuance of a nonconforming use 'is a continuance of the same use and not of some other kind of use.' Kensington Realty Holding Corp. v. Jersey City, 118 N.J.L. 114, 191 A. 787, 788; Simone v. Peters, 135 N.J.L. 495, 53 A.2d 315; Home Fuel Oil Co. v. Borough of Glen Rock; Town of Lexington v. Bean; In re Botz; Women's Christian Ass'n of Kansas City v. Brown; Appeal of Yocom; supra, note 1. Defendants never conducted a service station on their premises until 1948, six years after the adoption of the ordinance. Although the service station is permitted in its location, the tanks are not permitted in the residence zone where defendants erected them. No one may erect such tanks in this residential district, and it would be an unwarranted discrimination in favor of defendants to hold that they may do so. Rehfeld v. City & Council of San Francisco, supra, 218 Cal. 83, 85, 21 P.2d 419; Pisicchio v. Bd. of Appeals, 165 Misc. 156, 300 N.Y.S. 368, 369-370.

Even if it be assumed that the tanks did not involve a new nonconforming use of the land, their construction was prohibited by the second paragraph of section 17 of Ordinance 371, which provides: 'The lawful use of a building existing at the time of the passage of this ordinance may be continued, although such use does not conform with the provisions hereof; such use may be extended throughout the building provided no structural alterations, except those required by law or ordinance, are made therein. If no structural alterations are made, a non-conforming use of a building may be changed to another non-conforming use of the same or more restricted classifications.'

A 'building' is defined in section 1 of ordinance 371 as 'a structure having a roof supported by columns or walls.' 'Structure' is defined as 'anything constructed or erected and use of which requires more or less permanent location on the ground or attachment to something having a permanent location on the ground.' It has been...