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District Court of Appeal, First District, Division 1, California.

REYNOLDS et al. v. BARRETT, Building Inspector.†

Civ. 10102.

Decided: May 11, 1937

Girard N. Richardson, City Atty., of Piedmont, and Robinson, Price & MacDonald, of Oakland, for appellant. Bestor Robinson and Breed, Burpee & Robinson, all of Oakland, for respondents.

Action instituted by plaintiffs, as owners of property outside of a business zone, to compel the building inspector of the city of Piedmont to issue them a building permit to erect a gasoline station, a business structure. The city has adopted three zoning ordinances, numbered 196, 268, and 315. According to its terms the second repealed the first, and the present ordinance, passed March 21, 1929, repealed the second. The ordinances have been the subject of years of extensive litigation, involving the present and other adjacent properties. Ordinance 268 first came under judicial scrutiny in the case of Wickham v. Becker, 96 Cal.App. 443, 274 P. 397, and it was held to be void on the ground that it created a monopoly. The same determination was made in Andrews v. City of Piedmont, 100 Cal.App. 700, 281 P. 78. A like ruling was upheld with reference to the parcel of land here involved in Reynolds v. City of Piedmont, 100 Cal.App. 802, 281 P. 79, and in Harris v. City of Piedmont, No. 109,838 the same conclusion was reached by the superior court with reference to a parcel of property adjacent to and immediately to the west of the property here involved, where it was held that the present ordinance, No. 315, was void so far as it affected the property involved for the reasons that it created a monopoly and was discriminatory. The case was appealed but was subsequently dismissed. There was tried contemporaneously with the Harris Case the action of Langstroth v. City of Piedmont. The parcel of land in that case was far removed from the business centers and the trial court found that the plaintiff was not within any reasonable or logical extension of such centers and could not therefore assert the validity of the ordinance. The judgment was affirmed on appeal. Langstroth v. City of Piedmont, 5 Cal.App.(2d) 146, 42 P.(2d) 356.

The present ordinance, No. 315, was involved in Wheat v. Barrett, 210 Cal. 193, 290 P. 1033. In that case judgment had been rendered opening certain property in lower Piedmont to business uses on the ground of the invalidity of ordinance No. 268. Pending an appeal ordinance No. 315 was passed and it was urged before this court that the writ of mandate issued against the building inspector should be recalled on the ground that ordinance No. 315 had superseded ordinance 268 and so far had not been declared invalid. This court agreed with the contention and in addition held, without presentation of evidence before it concerning monopoly, that ordinance No. 315 was valid. On rehearing, the supreme court adopted as its opinion the opinion of this court, with the exception of the last two paragraphs thereof which determined ordinance No. 315 to be valid.

The present case was tried before the same judge who decided the Harris and Langstroth Cases, above referred to. The court among other things found, in substance, that under the ordinance two business districts were created, one known as the Highland business district, where plaintiffs' property is situated, the other as Grand avenue business district. It further found that the two districts were so separated by difference in elevation, by street alignment, and by distance as to be noncompetitive; that they were separate portions of the city; that a monopoly of ownership exists as to said Highland business district, in that the said entire business district, except only property devoted to public use is entirely owned by one corporation; that a monopoly of use exists in said business district and there is no room available for expansion; that the ordinance is discriminatory and arbitrary as to plaintiffs' property; that property immediately to the west is by said ordinance open to business uses and is in fact occupied by the city of Piedmont for the purpose of conducting thereon a municipal garage, a fire department, and a city hall; that the property to the east is open to business uses; that the property to the south is used for the maintenance of a fraternal meeting hall and a school; that there is no difference with reference to its use for retail business purposes between the character of plaintiffs' property and the character of the property surrounding the same, either immediately or across the street; that its use for business purposes will not endanger the safety, health, or general welfare of the people; that the area comprised within the highland district is the same as contained in ordinance No. 268. The court further found that the question had been conclusively determined in a prior action.

There is ample evidence in the record to sustain the findings that there is a monopoly of ownership in the Highland business district as it is owned by one corporation, that the ordinance is discriminatory in so far as it affects plaintiffs' property, and also that the ordinance failed to provide an adequate business area. To support the claim of res adjudicata, plaintiff offered in evidence certain judgment rolls in cases above referred to. For some reason the record does not disclose they were not admitted but merely marked for identification. Many months after the making and entry of judgment herein a nunc pro tunc order was made by the trial court admitting these rolls in evidence, evidently for the purpose of supporting the finding of res adjudicata. This constituted error, as such an order can be made only to show something done which was actually done but not entered in the record, and it cannot be made to declare that something was done which was in fact not done. We do not deem the various questions raised as to the evidence and pleading of this subject to be necessary to a disposition of the case for, assuming the finding of res adjudicata to be unsupported, the other grounds of the decision are in no manner affected thereby and are fully supported by the evidence as set forth in the findings above narrated. Courts have the power to determine whether or not zoning ordinances are arbitrary and discriminatory. The court having found upon proper and sufficient evidence that such is the character of the ordinance in question in so far as it affects plaintiffs' property, such finding is binding upon the appellate court.

For the reasons given the judgment is affirmed.

TYLER, Presiding Justice.

We concur: KNIGHT, J.; CASHIN, J.