290 P. 480 | Cal. Ct. App. | 1930
This is an appeal from a judgment denying appellant a peremptory writ of mandate to compel respondent Woodruff, as building inspector of the city of San Jose, to issue a permit for the construction of a combined residence and store building. After appellant and his architect had taken up orally with respondent Woodruff the matter of the issuance of such permit, but before any written application had been made therefor, a certain emergency Ordinance No. 2232 was adopted by the city council of San Jose which directed the building inspector not to issue any building permit for any building not in conformity to the provisions of a certain preliminary zoning ordinance, the adoption of which had been recommended to said city council by the planning commission. Under the terms of said zoning ordinance, which was afterward adopted by the council, a building of the character sought to be constructed by appellant upon his lot was prohibited.
[1] Appellant's contention that the emergency recital of said Ordinance No. 2232 is insufficient is answered by the case ofMiller v. Board of Public Works,
[2] Appellant further attacks said emergency ordinance upon the ground that in its adoption the city council did not follow the procedure outlined in the Zoning Enabling Act (Stats. 1917, p. 1419), and cites in support of his contention Berrata v.Sales,
All that has been said heretofore applies with equal force to the second emergency ordinance adopted after the final report of the planning commission was made to the city council.
[3] Appellant's claim of estoppel by the conduct of respondent Woodruff is not borne out by the evidence or the findings and in no event could a mere administrative officer by his conduct estop the legislative body of the city from adopting and enforcing a police regulation which it deemed necessary or advisable (Maguire v. Reardon,
[4] Entirely apart from the considerations hereinabove discussed, the judgment must be affirmed because at no time was an application for the permit made in writing as required by the building ordinance of the city of San Jose and before the time of trial the zoning ordinance itself had been finally adopted and come into effect.
Judgment affirmed.
Tyler, P.J., and Cashin, J., concurred. *288
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on September 11, 1930.