Sladovich v. Fresno County

• Decision Date: 05 March 1958
• Citation: 322 P.2d 565,158 Cal.App.2d 230
• Parties: L. M. SLADOVICH, Plaintiff and Respondent, v. COUNTY OF FRESNO, a body corporate and politic, Bert DeLotto, Norman E. Foley, Sidney L. Cruff, Sloan P. McCormick and Henry j. Andreas, Members of the Board of Supervisors of the County of Fresno, Defendants and Appellants. Civ. 5648.
• Court: California Court of Appeals Court of Appeals

Page 565

322 P.2d 565

158 Cal.App.2d 230

L. M. SLADOVICH, Plaintiff and Respondent, v. COUNTY OF FRESNO, a body corporate and politic, Bert DeLotto, Norman E. Foley, Sidney L. Cruff, Sloan P. McCormick and Henry j. Andreas, Members of the Board of Supervisors of the County of Fresno, Defendants and Appellants.

Civ. 5648.

District Court of Appeal, Fourth District, California.

March 5, 1958.

Hearing Denied April 30, 1958.

Robert M. Wash, County Counsel, Spencer Thomas, Jr., Asst. County Counsel, Fresno, for appellants.

Lawrence W. Young, Donald R. Franson, Fresno, for respondent.

GRIFFIN, Justice.

Plaintiff and respondent L. M. Sladovich brought this action against the County of Fresno and its Board of Supervisors for declaratory relief, alleging that plaintiff owned property approximately 40 acres of land, in Fresno County immediately northwest of the City of Fresno, which was improved with a vineyard and a house located on the east side of Braley Avenue and about midway between Shaw Avenue on the north and Ashlan Avenue on the south; that the defendant Board of Supervisors, pursuant to its ordinance No. 322, and amendments thereto, zoned plaintiff's property as Zone R-A (Rural Residential and Agricultural). A zone map indicating 13 classes of zones is made a part of said ordinance and the property is so classified thereon. A copy of this map is used as an exhibit in this case. The Southern Pacific Railway tracks extend through the City of Fresno in a general northwest-southeast direction and immediately east of Highway 99. The bulk of the property to the east of the tracks and abutting on them in that neighborhood is classified as M-2 Zone (Heavy Industry). The general plan appears to be that to the immediate east of that zone, though irregular, Zone M-2 is joined by other land denominated M-1 (Light Industry). To the west of plaintiff's property are M-2 and M-1 zones. On the M-2 property, consisting of about 52 acres, is a cotton press located about 630 feet west of plaintiff's property, with extensive operations during the cotton season. The railway tracks are about one-fourth mile west of plaintiff's acreage. The general area to the north and east of plaintiff's property (80 acres), classified as R-A, is used partially by a warehouse company for the seasonal storage in the open of cotton bales which are often moved by large trucks. This use was considered by the Zoning Commission to be an 'M-2' use but was permitted upon this R-A zoned property as a nonconforming use by reason of its existence there prior to the R-A zoning. Forty acres to the south and east of plaintiff's property is zoned M-2, and on it is located a Conduit Company for the manufacture of concrete pipe, which has extensive operations. South and east of it, near Ashlan Avenue, is located another concrete plant (M-2 Zone) with heavy operations. The cotton press and the concrete mixing plants are all served by spur tracks from the Southern Pacific Railway Company.

In July, 1956, plaintiff filed a petition with the Planning Commission to have his property reclassified from R-A to M-2 Zone. At the hearing before the Commission each party produced evidence as to the conditions prevailing. It was argued by plaintiff that due to these conditions, as an R-A Zone, his property was worth about $21,500, and if classified ws M-2 Zone, it would have a value of $93,000. After consideration of the evidence the petition was denied without prejudice. Plaintiff appealed to the County Board of Supervisors. A full hearing was had resulting in a denial of plaintiff's petition without prejudice.

In this action plaintiff prayed that the establishment of the existing R-A Zone, as to his property, be declared illegal and void, and that he be authorized to use his property for heavy industry or 'M-2 purposes'.

Members of the Planning Commission and its director testified at the trial, held in January, 1957, that evidence, both pro and con, in relation to the petition of plaintiff to rezone his property, was produced at the hearing before the Commission on July 31, 1956. Zoning maps here in evidence were used and the particular uses to which the surrounding properties were put were fully described. It affirmatively appears from that testimony that the City of Fresno, the County of Fresno, and the City of Clovis had, in the month of March, 1956, due to certain existing conditions, entered into some form of agreement with an 'Area Planning Commission' in consideration of many thousands of dollars, to study and analyze properties in these cities and portions of the county surrounding them in regard to a land use study pertaining to adjustment of classifications, zoning or rezoning of said properties to the best advantage of said property owners, the cities, the county, and the metropolitan area, all of which involved approximately 80,000 parcels of property including the property in the area here in question. In July, 1956, the 'Area Planning Commission' and staff began more intensive work on the subject in conjunction with the officers and staff of the several planning commissions, and certain information was made available to the County Planning Commission as the work progressed pertaining to the area here involved. It appears that several of these property owners near plaintiff's property were desirous of having the classification of their property changed, and these changes were in the process of study when plaintiff filed his petition to change his property one class from R-A to M-2 Zone.

Apparently the evidence thus produced before the County Planning Commission was considered by it. It appears that at least one of the motivating factors leading to the denial of the petition was the fact that an intense study was being made, as indicated, and that any present change in the classification of plaintiff's property might reasonably affect other surrounding property and that similar applications would be made by such owners, thus greatly enlarging the M-2 Zone, if granted, which might well interfere with and change the findings and report of the Area Planning Commission in respect to the entire district. Accordingly, the petition was denied, without prejudice. The general report was to be completed by June 30, 1957.

After due notice under said ordinance a hearing was had before the defendant Board of Supervisors. The evidence taken before the Commission as well as considerable additional evidence was received. The principal planner for the Area Planning Commission there testified as to the progress made in its general study under the contract in much more detail in reference to the area here involved, although his full report had not yet been completed. Several members of the Board of Supervisors testified and gave various reasons for upholding the Planning Commission in denying the petition. Some made personal observations of the surrounding territory and considered the fact that the prevailing wind was from the northwest across this M-2 industrial property, and in general blew over and across residential and possible residential districts of the city and county and that any increase in industrial use would be detrimental to such districts and their inhabitants, especially if used for hog-feeding purposes or similar unpleasant uses abusive to the senses and general health. Their testimony indicated that the board generally considered as a factor the fact that experts had been employed, at great expense, to study this, as well as the general problem confronting them and that petitioner should await the results of that study before the board should grant petitioner's request to have his property rezoned to M-2. It denied the petition without prejudice.

Volumes of evidence were produced before the trial court, both pro and con, including additional testimony of the Area Planner, showing what progress had been made in their study. Maps were produced and picture slides exhibited showing in detail many of the results affecting plaintiff's property and the surrounding area. There was testimony that the area in the vicinity of the subject property zoned for industrial uses is now about 50 per cent developed to industrial uses; that due to proposed realignment of Highway 99 as a freeway near there, there will soon be an undetermined change in the industrial zoning and traffic pattern; that the area lying east of Valentine Avenue and east of plaintiff's property is potentially good residential property; that there should be a buffer between M-2 uses and residential uses; and that this property should be classifed as to constitute a buffer zone to it; that the open storage of cotton bales to the north and east of the subject property is a nonconforming use involving minimum improvements, does not prove harmful to surrounding properties, and may possibly be terminated in time; that due to wind conditions this area would be just about the last place to expand or locate a new industrial development; that if not used for R-A Zone purposes there are many other purposes than M-2 which are 'transitional' uses to which the property could be put and which would not aggravate the existing conditions.

Plaintiff produced evidence as to the dilapidated condition of his house, fig trees and grape vines on this acreage. He claimed it could not be economically maintained as such; that the noises and stenches were unbearable for living purposes; that since the surrounding territory was classified and used for heavy industrial purposes the ordinance classifying his property as R-A was unconstitutional and void.

The court heard the evidence produced, viewed the surrounding territory and conditions and found that the Planning Commission and the Board of Supervisors acted arbitrarily, oppressively and unreasonably in denying plaintiff's petition, and found that the existing ordinance, as applied to plaintiff's property, was null and void. It entered an interlocutory decree...