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District Court of Appeal, Fourth District, California.

E. R. BRINGLE, Petitioner and Appellant, v. BOARD OF SUPERVISORS OF COUNTY OF ORANGE, State of California, C. W. Donohue, etc., Respondents.*

Civ. 5991.

Decided: November 13, 1959

Blodget, Gilbert & Cochran, by John H. Gilbert, Jr., Santa Ana, for appellant. Joel E. Ogle, County Counsel, Stephen K. Tamura, and Adrian Kuyper, Asst. County Counsel, Santa Ana, for respondents.

The appellant is the owner of approximately four acres of land lying five or six miles from the city limits of Santa Ana, in Orange County. The property had been placed in a zone designated ‘A–1,’ for agricultural purposes, by the planning commission and the board of supervisors of the county. Several years previous, a zone variance had been granted to petitioner to use his property in connection with his excavating business and for the storage of heavy machinery; which variance, however, was limited to a number of years. Upon the expiration of this zone variance the petitioner made application for an additional zone variance for the same purposes and uses. The planning commission recommended the granting of the application and the issuance of a zone variance for a period of five years upon condition, however, that petitioner should, without further consideration, dedicate to the county an easement for the right-of-way of Bolsa Avenue to a width of 60 feet from the center line thereof, and upon the further condition that petitioner should post bond with the company to insure the installation of concrete curb and gutter at such time as Bolsa Avenue might be widened. The board of supervisors accepted the recommendations of the planning commission and made its order for the granting of such zone variance, subject, however, to the suggested conditions.

Thereafter, the petitioner and appellant brought this action in the form of a petition for writ of mandate and for declaratory relief. The sole issue involved was the validity of the restrictions thus imposed and the question of what order, if any, the court should make in regard thereto.

At the trial, the only evidence received in addition to the record of proceedings had to do with the ownership and description of the petitioner's property. Evidence was introduced to the effect that the area in which the property was located was an open, sparsely settled area and most of the surrounding property was vacant. It was further shown that the soil of petitioner's property contained such high alkali content that it had theretofore been proven unfit for agricultural purposes, and that much of the area thereof had been paved for use in connection with petitioner's business.

The trial court denied the petition and rendered judgment against petitioner, and from this judgment the appeal is taken.

The parties have indulged in considerable argument with respect to the reasonablenes or unreasonableness of the orders made by the planning commission and the board of supervisors. Apparently, those considerations largely governed the decision and judgment of the trial court. There is not here involved any question as to the validity of the zoning ordinance of Orange County. It is, of course, true that it is proper to provide for conditions to be attached to zone variances in order that the general purpose and intent of the zoning ordinances will be preserved. Hohnston v. Board of Supervisors, 31 Cal.2d 66, 187 P.2d 686; Edmonds v. County of Los Angeles, 40 Cal.2d 642, 255 P.2d 772. The ordinance in question provides that the board of supervisors may grant such variances ‘under such conditions as the board may deem necessary to assure that the general purpose and intent of this ordinance will be observed, public safety and welfare secured, and substantial justice done.’

The question here involved, however, is whether the board has power to attach conditions of this nature. The question is whether the board in such instance may, as a condition to the granting of a zone variance, require the applicant to convey to the county, without compensation, irrevocable easements for road purposes, and undertake to secure the installation, without expense to the county, of curbs and like improvements to be installed upon the completion of a widening of the highway. Although it is a fact that in recent years similar conditions have been attached to permits for zoning variances by various zoning authorities, the validity of such conditions does not appear to have been passed upon by the appellate courts of this state.

Article 1, section 14 of the Constitution of California provides that private property shall not be taken or damaged for public use without just compensation having first been made to the owner. In other states it has been held that conditions of this nature attached to permits are void for the reason that they constitute a taking of property without the payment of just compensation. Vangellow v. City of Rochester, 190 Misc. 128, 71 N.Y.S.2d 672; Rand v. City of New York, 3 Misc.2d 769, 155 N.Y.S.2d 753; Grosso v. Board of Adjustment, 137 N.J.L. 630, 61 A.2d 167; Miller v. City of Beaver Falls, 368 Pa. 189, 82 A.2d 34.

It has been repeatedly held by the courts of California that orders which pass beyond a proper exercise of police power to the end that they constitute an invasion of the rights guaranteed under this section of the Constitution are invalid. House v. Los Angeles County Flood Control District, 25 Cal.2d 384, 153 P.2d 950; Archer v. City of Los Angeles, 19 Cal.2d 19, 119 P.2d 1; Beals v. City of Los Angeles, 23 Cal.2d 381, 144 P. 839.

The respondents place reliance upon the decision of the Supreme Court in Ayers v. City Council of Los Angeles, 34 Cal.2d 31, 207 P.2d 1, 11 A.L.R.2d 503. In that case it was held that as a condition to the granting of permission to file a subdivision map it was lawful for the city to require that the petitioner dedicate a certain area to the city for street purposes. There was involved an entirely different situation. When the owner of property seeks to subdivide the same and record a map in order that parcels may be sold to different owners, it has long been recognized that such subdivision must make some reasonable provision for access by streets, and in the absence of such provision, approval of the proposed subdivision may be withheld. It is of the very essence of such procedure that purchasers of lots in the subdivision be protected to some extent in securing to them reasonable access to the purchased property. No such situation is involved in an application for a zone variance in order to permit the use of the property for which it is fitted.

We have no hestitancy, therefore, in holding that in a situation such as here involved, a condition requiring the irrevocable dedication of a right-of-way without compensation, and requiring the filing of a bond to assure the construction of improvements without expense to the county, is void and beyond the power of the board of supervisors, because it constitutes a taking of private property without payment of just compensation.

The parties have indulged in considerable argument with reference to the nature of relief that can be granted or should be granted in this proceeding. It must be borne in mind that there is not involved any review of the reasonableness or unreasonableness of an order of zone variance. The sole question to be determined is whether conditions which the supervisors attempted to attach are valid. Upon a holding that such conditions are void under the constitutional provision, the proper procedure is simply to eliminate the void conditions and require the issuance of the permit for zone variance without the void conditions.

In Kelber v. City of Upland, 155 Cal.App.2d 631, 318 P.2d 561, permission was granted to file a subdivision map upon condition, however, that the subdivider make certain payments to be used for a fund for the improvements of parks. The court held that such requirement was entirely beyond the power and jurisdiction of the city and that the fees so paid pursuant to the conditions should be returned.

It has been held that where an order of probation was granted upon the improper and illegal condition that the defendant leave the county, such condition should be stricken from the order, leaving the order of probation in effect. In re Scarborough, 76 Cal.App.2d 648, 173 P.2d 825. This ruling was followed and a similar order was made in the recent case of People v. Blakeman, 170 Cal.App.2d 596, 339 P.2d 202, 203. In that case, in response to the suggestion that the order of probation should fall if the condition was held to be improper, the court stated: ‘The law can not suffer the state's interest and concern in the observance and enforcement of this policy to be thwarted through the guise of waiver of a personal right by an individual.’

As the issues are framed in this proceeding, there is not presented for determination a question of the validity of the zoning ordinance insofar as it places the petitioner's property in an agricultural zone. The evidence as to the character of the property, its adaptability for various uses, and its location and surroundings, is material only as indicating that proper grounds for a zone variance existed. It had theretofore been so determined by a granting of a previous zone variance. Upon the granting of a zone variance in this matter, there would be no reason for inquiring into the validity of the ordinance. It was held in Metcalf v. County of Los Angeles, 24 Cal.2d 267, 148 P.2d 645, that where a property owner has properly applied for a zone variance and the same has been denied, he may then challenge the validity and reasonableness of the ordinance as applied to the particular property, and that the making of such application does not in any respect waive such right. Such proceeding is distinguished from an attack on the validity of the ordinance as a whole, as discussed in Rubin v. Board of Directors of the City of Pasadena, 16 Cal.2d 119, 104 P.2d 1041. If, in the future, a zone variance be denied, that question may well arise.

It is ordered, therefore, that the judgment be reversed and the cause remanded with directions to the trial court to grant the writ and to order the issuance of the permit of zone variance without the restrictions about which petitioner complains.

MONROE, Justice pro tem.

GRIFFIN, P. J., and SHEPARD, J., concur.