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Court of Appeal, Second District, Division 2, California.

Josephine Mandl HILL, Plaintiff and Respondent, v. CITY OF MANHATTAN BEACH, Defendant and Appellant.

Civ. 37309.

Decided: April 20, 1971

Carl K. Newton, City Atty., Manhattan Beach, Burke, Williams & Sorensen by Carl K. Newton, Los Angeles, for defendant and appellant. Dudley Gray, Torrance, for plaintiff and respondent.

In an action for declaratory relief, plaintiff sought, over objection of defendant City of Manhattan Beach, to establish her right to sell one or both of two parcels of land and to erect a dwelling on one of the parcels.

The City of Manhattan Beach (hereinafter called City) through a series of ordinances enacted by its City Counsel controls the subdividing and development of real property located within its boundaries.

The pivotal items of legislation in this regulatory scheme are (1) a comprehensive zoning ordinance adopted in 1958 and which, insofar as it is relevant to this case, provides for a minimum lot size of 7500 square feet and a minimum lot frontage of 50 fect; and, (2) an ordinance which prevents land division and separation of ownership without prior approval.

Thus, no building permit may issue for a lot which is smaller than the prescribed minimum and no land may be subdivided without approval of the City Council.

As is so often the case when these ordinances were enacted, there existed in the City, parcels of real estate which did not conform and which, without the destruction of buildings or changes in ownership, could never be made to conform. As a matter of fact the evidence showed that of the 216 lots in the tract which contains plaintiff's property there are 100 existing lot splits, 22 of which are within a 500 foot radius of plaintiff's property. As a consequence, the City provides exemptions which, among other things, permits development of substandard lots created by early small lot subdivisions. Existing dwellings under separate ownership on portions of lots, if otherwise lawfully constructed, are also declared lawful.

In 1969 plaintiff, desiring to sell or develop an undeveloped parcel of real estate owned by her, petitioned the City for a ‘zone variance.’ Technically, she was not seeking a ‘variance’ in the strict sense but was actually pressing for a determination that two adjoining parcels of land, one developed and one undeveloped both owned by her and neither of which met the standards of the zoning ordinances, were two separate substandard lots that benefited by the above mentioned exemptions.

The City's position was and is, that because of common ownership, the two parcels constitute one standard and conforming lot and may only be developed or sold as such.

Thus City denied plaintiff's petition and this action ensued. The trial court ruled that, as to plaintiff, the zoning and lot-split control ordinances could not constitutionally apply. On this basis, the court decreed that plaintiff was the owner of two separate lawful building sites and that she could sell each parcel separately, erect a single family dwelling on the undeveloped parcel and maintain, enlarge or remodel the existing dwelling on the developed parcel. The City appeals.

The property in question, by original subdivision in 1919, was established as a lot of approximately 10,500 square feet. In its present configuration it occupies a corner with 75 foot frontage on one street and its easterly limit fronting an intersecting street for approximately 142 feet.

In 1928, the west one-half of the property was sold off by a deed of record. At that time no city ordinance controlled such lot-splitting. The property, after the sale, then consisted of two separately owned parcels, each with approximately 37 1/2 foot frontage and an area of approximately 5,300 square feet.

In 1941, plaintiff purchased the easterly or corner one-half of the property and erected a house thereon. The zoning ordinance in effect at that time required a minimum of 4800 square feet of lot area. Thus, plaintiff made conforming use of the property.

In 1945, plaintiff purchased the westerly one-half from the City at a tax sale. While plaintiff has not yet developed the westerly parcel, it is of significance that at the time she acquired it the westerly parcel conformed to the existing zoning requirements and was a lawful building site. Furthermore, while not totally determinative, it is important to note that since 1945 the two parcels have been separately assessed and separately taxed.

No question has been raised in these proceedings as to the basic constitutionality of the City's zoning ordinances, nor does plaintiff deny the power of the City to constitutionally control the subdivision of property.

We need not dwell upon the general principles of law governing the field of zoning and municipal regulations.

Suffice to say, that zoning ordinances and lot-split controls such as are presently in force in the City are a valid exercise of the police power and are entitled to a presumption of validity.

The ultimate test, however, of any such ordinance and the exercise of the City's powers, thereunder, is whether it is unreasonable and oppressive as applied in a particular case. (Lockard v. City of Los Angeles, 33 Cal.2d 453, 202 P.2d 38.)

‘A provision which exempts existing nonconforming uses is ordinarily included in zoning ordinances because of the hardship and doubtful constitutionality of compelling the immediate discontinuance of nonconforming uses.’ (Edmonds v. County of Los Angeles, 40 Cal.2d 642, 255 P.2d 772; County of San Diego v. McClurken, 37 Cal.2d 683, 686, 234 P.2d 972.)

The City concedes that, under its existing ordinances and exemptions thereto, if the two parcels which plaintiff now owns were separately owned, each owner could freely alienate his parcel or the owner of the undeveloped parcel could, if he chose to do so, erect a single family dwelling thereon.

This latter concession is based upon the following provision of the City's ordinance:

‘Sec. 10–3.1421. Substandard Lots. When a lot has less than the minimum required area or width as set forth in any of the zones and area districts contained in this chapter, or in a specific plan, and was of record on November 6, 1958, such lot shall be deemed to have complied with the minimum required lot area or width as set forth in any such zone, district, or specific plan. The lot area per dwelling unit, however, shall remain as specified in the applicable area district, except that in no instance shall this provision prevent the erection of a single-family dwelling on any substandard lot.’

Thus the question really narrows to the definition of ‘lot’ as used in section 10–3.1421.

If each of the two parcels in question is a ‘lot’ then the undeveloped ‘lot’ can be developed under section 10–3.1421 and each lot could be sold separately without council approval because such sale would not amount to a division of land or a separation of ownership within the purview of the lot-split control ordinance. This is the essence of the judgment below. While the parties discuss ‘variance’ and the trial court in a conclusion of law found that City had abused its discretion in denying a ‘variance’, the question is basically whether the limitation of the zoning and lot split control ordinances could be applied to the property rather than variance. Variance implies application of and connotes consensual deviation from the ordinance. (Tustin Heights Ass's v. Bd. of Supervisors, 170 Cal.App.2d 619, 339 P.2d 914.)

The question presented is one of law. The facts are not in dispute and we are required to interpret the ordinance in light of the facts.

When plaintiff acquired the parcels in 1941 and 1945 each was at the time an identifiable separate ‘lot’. Plaintiff received separate deeds from separate sources, each parcel met the minimum zoning requirements and since 1945 each parcel has been assessed and taxed separately. Thus, each parcel exhibited the indicia of a separate and identifiable ‘lot’.

Section 10–3.1421, supra, contains no indication that the City intended to attach any special or unusual meaning to the term ‘lot’.

Resort to cases and other authorities for a definition of ‘lot’ leads to the conclusion that in each instance the definition depends on the circumstances of the case.

‘The test, therefore, is to be gathered from the intention of the landowner, * * * and not from the theories of the public authorities.’ (Potter v. City of Orange, 62 N.J.L. 192, 40 A. 647, 648.)

Government Code section 59107 defines ‘lot’ as ‘land, lot, part of a lot, parcel, or piece of property.’

A dictionary definition of ‘lot’ is ‘a portion of land, [or] a measured parcel of land having fixed boundaries and designated on a plot or survey.’ (Webster's Seventh Collegiate Dictionary (1967).)

Thus the term ‘lot’ can be aptly applied to each parcel here.

Does the acquisition of two such adjoining parcels by a single owner automatically cause a merger into a single ‘lot’?

This appears to be a matter of first impression in California.

The City cites Vetter v. Zoning Board of Appeal of Attleboro, 330 Mass. 628, 116 N.E.2d 277, as persuasive. In that case the Massachusetts court held that a property owner could not benefit by an exemption to the zoning ordinance. There as here the property consisted of two small adjoining parcels which the plaintiff had acquired at different times from different sources.

A distinguishable feature of the Massachusetts ordinance, however, was a specific provision that the exemption did not apply to a lot which adjoined other land owned by the same owner and which was available for use in connection with said lot. No such language is to be found in the City's ordinance.

Our research has led us to one case which is factually indistinguishable from the case at bar. In Schack v. Trimble, 48 N.J. Super. 45, 137 A.2d 22, the New Jersey court dealt with a plaintiff who, as in the case at bar, purchased a parcel of land adjoining property already owned by him. That purchase occurred, interestingly enough in 1945, as a result of a tax sale conducted by the city. It was there held that the second acquisition did not bring about a joinder of the two parcels. This case is made more persuasive by the fact that the zoning ordinance there sought to be applied was one which was in effect when the property was acquired. We are dealing here with an enactment which followed plaintiff's purchase of the property.

The learned trial judge in his memorandum opinion correctly analyzed the problem by concluding that a joinder, if it is to occur, must be accomplished by either (1) operation of law or (2) imputation of intent.

The City points out that section 10–3.251 of its zoning ordinance enacted in 1958, defines what is a ‘lot’ as follows:

“Lot's means: (a) A parcel of real property when shown as a delineated parcel of land with a number or other designation on a plat recorded in the office of the County Recorder; or (b) A parcel of land the dimensions or boundaries of which are defined by a record of survey recorded pursuant to the provisions of the Subdivision Map Act of the State in the office of the County Recorder; or (c) A parcel of real property not delineated as in subsections (a) or (b) and containing not less than the prescribed minimum square footage required in the zone in which it is located * * *'

This definition is of no assistance in defining ‘lot’ as used in section 10–3.1421, or in applying that section or the lot split control to the property here. It makes no reference to ownership and neither of the parcels would qualify under this definition even under separate ownership.

The zoning plan of which the ‘lot’ definition is an integral part must be viewed as prospective in its operation and cannot operate to restrict alienability of property acquired prior to its enactment.

The general rule is against an interpretation of an ordinance which gives it retrospective effect especially where vested rights are affected. This rule is applicable to zoning ordinances. (McCaslin v. City of Monterey Park, 163 Cal.App.2d 339, 329 P.2d 522.)

Where the retrospective application of an ordinance would cause substantial injury and the thing sought to be regulated is not a nuisance,1 such application is an unreasonable exercise of the police power. (Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14.)

To hold otherwise, would permit condemnation of the property without compensation.

A taking in violation of the constitution ‘is not restricted to a mere change of physical possession, but includes a permanent or temporary deprivation of the owner of the use or enjoyment of his land. * * *’ (Frustuck v. City of Fairfax, 212 Cal.App.2d 345, 364, 28 Cal.Rptr. 357, 369.)

The undue restriction on the use of property is as much a taking for constitutional purposes as is an appropriation or destruction. (Pacific Telephone, etc., Co. v. Eshleman, 166 Cal. 640, 137 P. 1119; People v. Associated Oil Co., 211 Cal. 93, 294 P. 717; Hilltop Properties, Inc. v. State of California, 233 Cal.App.2d 349, 43 Cal.Rptr. 605.)

These principles apply with equal force to existing non-conforming use of property and to restrictions on the alienation of property.

Thus, the City cannot rely on its recently enacted definition of ‘lot’ to deny to plaintiff rights which it concedes would be available to separate owners of the two parcels.

Whichever was it turns, the City must eventually retreat to the single proposition that plaintiff's sequential (not even simultaneous) acquisition of two separately identifiable, albeit adjoining, pieces of property both of which were legally conforming parcels according to the law as it existed at the time of the acquisition, merged these parcels into one ‘lot’. No general principal of law dictates this result.

The City's own ordinances failed to deal with this situation. Neither section 10–3.251 nor section 10–3.1421 mentions ownership. Nor does any ordinance or statute cited by the City purport to create a single lot out of two because of common ownership. Such a failure is fatal to City's position.

There is no evidence that the parties intended, apart from any law requiring it, to create a single lot out of two. At the time the City deeded the undeveloped parcel to plaintiff there was nothing in the deed or existing ordinances manifesting the City's intent in this regard and nothing which could have placed plaintiff on notice that such a result would occur. Any restraint on alienation which the City might have endeavored to insert in the deed at that time would have been void. (Civ.Code, § 711.) The City cannot, by the later enactment of an ordinance, indirectly accomplish the same result.

Morris v. City of Los Angeles, 116 Cal.App.2d 856, 254 P.2d 935, a case on which the trial court and plaintiff strongly relied, is, as pointed out by the City, factually distinguishable in that the two parcels involved there were both fully developed. However, a careful reading of that case discloses that the court was concerned more with the oppressive effect that the ordinance had on the property owner's freedom to alienate his property.

In holding that the City there could not prevent the subdivision of one existing non-conforming lot into two non-conforming lots by the sale of a portion of the original lot, the court said, ‘Plans developed through years of thrift and careful investment would thus be frustrated. The ordinance would stand in the way of a sale of part of a lot to pay off an indebtedness on the whole, or giving a deed to a marrying son or daughter. Such oppression would be beyond reason.’ (Emphasis added.) (P. 863, 254 P.2d p. 940.)

Thus, contrary to City's position, we believe the result in Morris would have been the same had the property not been developed.

The City here is contending for a construction and application of its ordinance which would impose a restriction on plaintiff, as to this property, applicable to no one else in the world—a restriction which has no support in law or equity. This would result in an oppression which is beyond reason.

We conclude that plaintiff is the owner of two ‘lots', each of which can be freely alienated without reference to the lot-split control ordinance. Further, the undeveloped is controlled by section 10–3.1421 and the City may not prevent the erection of a single family dwelling thereon by plaintiff or her successor or assignee.

The judgment is a affirmed.


1.  The trial court found that the property was located in a ‘typical beach neighborhood.’ Implicit in its additional findings that there were a number of existing lot splits in the area is the finding that the development of this property by plaintiff or its sale and development by a subsequent owner would not constitute a nuisance or a threat to the health and safety of the community.These findings are supported by evidence which consisted primarily of the court's on-site view of the property. (McCarthy v. City of Manhattan Beach, 41 Cal.2d 879, 264 P.2d 932.)

COMPTON, Associate Justice.

ROTH, P. J., and FLEMING, J., concur. Hearing granted; BURKE, J., did not participate.