Spindler Realty Corp. v. Monning

• Decision Date: 29 June 1966
• Parties: SPINDLER REALTY CORPORATION, a corporation, Petitioner and Appellant, v. John C. MONNING, as General Manager, etc., Respondent. SPINDLER REALTY CORPORATION, a corporation, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent. Civ. 29616.
• Court: California Court of Appeals Court of Appeals

Page 7

53 Cal.Rptr. 7

243 Cal.App.2d 255

SPINDLER REALTY CORPORATION, a corporation, Petitioner and Appellant, v. John C. MONNING, as General Manager, etc., Respondent.

SPINDLER REALTY CORPORATION, a corporation, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

Civ. 29616.

District Court of Appeal, Second District,

Division 2, California.

June 29, 1966.

As Modified on Denial of Rehearing July 27, 1966.

Hearing Denied Aug. 24, 1966.

Barry Brannen, Beverly Hills, for appellant.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Robert C. Summers, Deputy City Atty., and William B. Burge, Deputy City Atty., for respondent.

McCOY, Justice pro tem. ^*

These are appeals from a judgment of the Superior Court denying a petition for a writ of mandate and from a judgment declaring the rights of the parties and denying an injunction.

In its first action appellant Spindler Realty Corporation (hereafter referred to as Spindler) sought a writ of mandate or writ of certiorari commanding John Monning, as General Manager and Superintendent of Building of the Department of Building and Safety of the City of Los Angeles, to issue a building permit for which it had applied and to rescind his action denying the permit. In its second action, Spindler sought an injunction against the enforcement of a certain zoning ordinance and a judgment that the ordinance is null and void insofar as it affects Spindler's property. For convenience, Monning and the City of Los Angeles are here referred to collectively as the City. The actions were consolidated for trial and separate judgments were entered in each action denying the relief sought by Spindler. Pursuant to stipulation, the appeals are consolidated for hearing and decision here.

The Facts

There is no dispute as to the following facts as found by the court in both actions. In 1948 Spindler was the owner of the subject property consisting of approximately twenty-one acres in the Santa Monica Mountains, located on Mulholland Drive near its junction with Coldwater Canyon Drive. Spindler also owned substantial adjacent property. In September of that year, on Spindler's application, the subject property was rezoned from R--1 to R--5, thus permitting the construction of a hotel or apartment house or other multiple dwelling. As that time the City refused to rezone Spindler's adjacent property from R--1 to C--1 so that it could be used for commercial purposes.

In April 1956, in proceedings instituted by Spindler, the Municipal Code was amended to authorize the carrying on of incidental business and recreational facilities in any hotel or apartment house situated on property zoned R--5, subject to certain conditions not material here. Shortly thereafter, Spindler obtained a conditional use permit for such use of its property through November 1956. This conditional use was later extended and remained in effect until December 4, 1961. In August 1956 Mulholland Drive was designated as a major highway.

In June 1960, in connection with the development of a comprehensive master plan of land use for that part of the Santa Monica Mountains including the subject property, all the property adjacent to and surrounding the subject property was rezoned from R--1 to R--1--H. The general effect of this rezoning was to increase the lot size for single family dwellings to 15,000 square feet. The subject property remained zoned R--5.

In August 1961 the Board of Building and Safety Commissioners modified its grading regulations to permit Spindler to develop a building site in an area other than a subdivision. On September 27, 1961, a grading permit was issued to Spindler for the preparation of a building site on the subject property without reference to any particular proposed use of the property as to the number, size or type of buildings to be erected on the site. Later Spindler filed the required bond on $275,000 conditioned on its faithful compliance with the terms and conditions of a grading permit.

The City also granted Spindler's application for a class 'B' permit, permitting Spindler to grade in the City's right of way. It also filed plans for temporary erosion control methods which were approved by the Department of Public Works. On November 17, 1961, the City also authorized Spindler to extend the toes of fillslopes on certain adjacent property owned by C. W. Foster, Inc.

On October 9, 1961, J. A. Thompson & Son started work on the subject property under the grading permit, consisting of brush clearance and access road leveling. The property had been staked by surveyors a few days earlier. On October 18, 1961, 'in reliance on said R--5 zoning and said Grading Permit and other administrative acts' of the City, Spindler, in good faith, entered into a contract with J. A. Thompson & Son for the grading of the subject property in accordance with the building permit. By this contract Spindler agreed to pay J. A. Thompson & Son not less than $562,796, based on the actual amount of the work done. Work under this contract was discontinued on March 8, 1962, except for putting the development and maintaining it in a safe condition.

On October 26, 1961, the City Planning Commission, finding that 'no development activity has occurred on the property,' initiated proceedings to consider the rezoning of the subject property from R--5 to R--1--H. When this resolution was adopted the Planning Commission was mistakenly informed that no physical development work had been done on the property and that Spindler had not talked with its architect for over two and one-half years. On October 31 Spindler asked for a reconsideration of the resolution which had been adopted without notice. Following a public hearing before a hearing examiner of the Planning Commission on December 18, the Commission adopted the examiner's findings and recommended the change of zone. On March 8, 1962, the City Council adopted ordinance No. 121338 the subject of this action, rezoning the subject property from R--5 to R--1--H. This ordinance became effective April 15, 1962.

With the several dates referred to in the foregoing paragraph in mind we turn to certain other findings. The court found that on October 27, 1961, the grading operations 'had reached a point where it would have been highly dangerous in the event of rainfall to have done nothing for the protection of property owners below the grading operations' and that, under this and other circumstances spelled out in the finding, Spindler's decision immediately after October 27, the day on which he had been informed of the Planning Commission's resolution of October 26 'to proceed with the grading was an entirely reasonable one to make. * * *' As of October 26 'a substantial portion of the grading under the grading permit had been performed' on the subject property; that 'at the very least (Spindler) had acquired a vested right to complete the grading under the grading permit issued to it, and that if it should be the law that vested right under said grading permit gives petitioner a vested right not only to complete the grading but also to build as permitted by R--5 zoning, a vested right to so build, subject to all other laws and ordinances applicable, had arisen.'

After the property was rezoned R--5 in 1948, Spindler sought to develop the property for a hotel. When it became apparent in 1960 that financing a hotel was not feasible, Spindler had plans prepared for an apartment house complex, proceeding therein in good faith 'at least until October 27, 1961,' in reliance on the R--5 zoning. Before the commencement of grading in October 1961, 'the best and economically the most feasible use for the subject property was for R--5 multiple family dwellings' although on October 27 extensive grading would have to be done to develop it for any purpose.

On February 23, 1962, Spindler filed plans for a high-rise apartment complex and an application for a building permit, but because these plans were inadequate for checking it asked the Department of Building and Safety not to check them and to wait for new plans. New plans were filed on March 27. On April 13 Spindler applied for a 'foundation only' building permit, but this was denied because the site was not suitable for immediate construction, even if it had remained zoned R--5. The Department approved, on April 16, the heating and refrigeration plans as submitted by Spindler. On April 27 the Department of Building & Safety submitted to Spindler a detailed list of corrections to the building plans filed March 27 and advised Spindler that the proposed construction was prohibited by the zoning regulations (presumably by the ordinance adopted March 8). Spindler asked the Department to proceed with the plan checking. On May 1 the Fire Department also submitted a detailed list of corrections. The parties stipulated that all required corrections either had been or could be made after June 1, 1962.

The court found that from 1948 through the year 1964 Spindler spent $522,541.55 in the development of the subject property. Of this, $305,287.12 was spent during the period of November 1, 1961 through April 30, 1962. The obligations accruing before January 1, 1961, were incurred in connection with both the hotel development and the apartment development. All those after January 1, 1961, were incurred in connection with the apartment house development.

Ever since June 1, 1962, the Department of Building and Safety has refused to issue a building permit, although at all times Spindler has 'sincerely desired' such a permit. The parties stipulated that Spindler exhausted all administrative remedies available to it before turning to the court for relief.

Certain other findings will be commented on when we consider Spindler's contentions on these appeals.

The Issues

Appellant's primary contentions common to both actions are: (1) that on the facts found by the trial court it had a vested property right in...