290 P. 1033 | Cal. | 1930
In this cause, the opinion of Mr. Justice pro tempore Campbell, heretofore rendered by the Honorable District Court of Appeal for the First Appellate District, has our approval and is, with the exception of the last two paragraphs thereof, hereby adopted as the opinion of this court herein, as follows [(Cal. App.) 288 P. 1092]:
"This is an action to compel the Building Inspector of the City of Piedmont to issue a permit for the erection of a store building upon plaintiffs' property. *195
"Defendant's refusal to issue the permit was based upon the prohibitions contained in ordinance No. 268 of the city of Piedmont, commonly known as the `Piedmont Zoning Ordinance,' which restrained the erection of store buildings except within the very restricted districts. The trial court held ordinance No. 268 void and ordered that a writ of mandate issue. Subsequent to this judgment by the trial court ordinance No. 268 was declared void by this court on the ground that it created a business monopoly. (Wickham v. Becker,
[1] "Subsequent to the entry of judgment the city of Piedmont passed ordinance No. 315, which prohibits the erection of a store building on plaintiffs' property. If the new ordinance is valid, it presents the question whether a writ of mandate should issue out of the lower court pursuant to the judgment as affirmed inWickham v. Becker. Accordingly, under the broad powers recently granted to appellate tribunals in this state, this court permitted the introduction of evidence upon the passage of the new zoning ordinance to determine its validity and upon the question of whether plaintiffs — respondents herein — had secured a vested right in the permit required to be granted under the terms of the original judgment. The additional evidence is before the court in the form of a written stipulation appended to which is ordinance No. 315, adopted under authority of section 41 of the charter of the city of Piedmont, and the building contract entered into by Wheat and wife with Charles E. Bardwell for the erection of the store building.
"Section 41 of the charter of the city of Piedmont, as amended, is as follows: `The City of Piedmont is hereby declared to be primarily a residential city and the Council shall have the power to adopt such zoning system within the city as may in its judgment be most beneficial, and in such zoning systems may prohibit the erection or maintenance of any class or classes of buildings within said areas, and may classify or reclassify the zones established, but no zone now existing shall be reduced or enlarged with respect to size *196 or area and no zones shall be reclassified without submitting the question to a vote of the electors held at a general election or a special election to be called for that purpose, and no zones shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon same shall vote in favor thereof.'
"From the stipulated facts it appears that after judgment was entered and before a stay of execution was secured and prior to taking an appeal the peremptory writ of mandate was served upon appellant, and the permit fee required to be paid was tendered to him and upon such tender being refused respondents thereafter deposited the sum of money involved in accordance with section
[2] "No point is made that ordinance No. 315 creates a monopoly, which was the decisive question in Wickham v.Becker, supra, the ordinance being attacked only on the ground that the council had no authority to pass it, and that to become effective it had to be adopted by a majority vote of the voters of the city. We do not agree with respondents in this contention, as it is obvious from a reading of section 41 of the Piedmont charter that the city council was within its rights and had authority to pass the ordinance, as ordinance No. 315 is a new ordinance and not an amendment to ordinance No. 268 nor any other ordinance. At the time ordinance No. 315 was passed the city of Piedmont had no zoning ordinance, the former ordinance having been adjudged to be void (Wickham v. Becker, supra), and the city council did not reduce nor enlarge zones then existing. The charter expressly provides that `the Council shall have the power to adopt such zoning system within the city as may in its judgment be most beneficial . . . and may classify and reclassify the zones established, but no zones now existing shall be reduced or *197
enlarged with respect to size or area and no zones shall be reclassified without submitting the question to a vote of the electors,' etc. It will thus be noted that section 41 of the charter gives the city council jurisdiction to classify new zones, and that it is only when existing zones are to be reclassified or changed that the question of the propriety of such reclassification or change must be submitted to the vote of the electors. Ordinance No. 268, being adjudged void, was ineffective for all purposes as of January 28, 1929 — the date of the decision in Wickham v. Becker, supra — and thereafter the city council had jurisdiction under section 41 of the charter of the city of Piedmont to adopt a new zoning ordinance, which it did when it adopted ordinance No. 315, and which was not an amendment to nor a reclassification of `zones now existing.' `A judgment on appeal like a judgment of a trial court has the force and effect of a judgment from the time of its entry.' (Eaton v.Southern Pac. Co.,
[3] "Respondents' claim that a vested right had been secured in the permit for the erection of the store building is answered in the following language from Brougher v. Board of PublicWorks, etc.,
"In the Brett case, cited with approval by our Supreme Court in the Brougher case, permits under the then-existing statutes and by-law were granted to petitioners to erect two family dwelling houses on adjoining lots. Each petitioner made certain contracts towards the construction of these houses and work thereon had actually begun. On one lot only some slight excavation had been done prior to the amendment of the by-law. On each of the other two lots the batter-boards had been erected and the engineering work of designating the lines of the houses and the height of the foundations had been done; on one of these some work of excavation had been done and on the other foundation trenches had been dug to the full depth and permits to pour cement for the foundations had been obtained, and yet the court held the erection of the buildings authorized by the permits would be a violation of the amendment to the zoning by-law effective after the issuance of the permits and dismissed the petitions for writ of certiorari. A similar situation is presented in Salem v.Maynes,
"As much, if not more so in the present case, is the work done inconsequential in proportion to the total cost of construction, than in the cases cited, and therefore less reason upon which to base the claim of a vested right. While it is held in PelhamView Apts. v. Switzer, 130 Misc. Rep. 545 [224 N.Y. Supp. 56, 57], cited by respondents, that a vested right had been secured by reason of the building permit having been issued in that case, the facts there are not analogous to those in the present case. In that case, quoting from the facts stated in the opinion of the court, `the petitioner purchased the real property in question, relying upon his right to the original permit issued to him to build a building, and that he paid a substantial sum of money on account of the purchase price for the same; that he thereafter employed the services of an architect, who prepared and caused to be filed plans for an apartment house building, for the building of which the original permit was issued; that relying upon this permit he paid additional sums on account of the purchase price, took title, and executed a purchase-money bond and mortgage. He thereafter incurred additional expense to have the land surveyed, so that the building might be properly placed thereon. That thereafter he proceeded to excavate the cellar, and paid for such excavation approximately $1,000.'
"From the foregoing statement of facts it appears that petitioner, relying upon his permit to build the building, purchased the property upon which to erect the building called for in the permit, paid the purchase price therefor in money and purchase-price bond and mortgage, and expended $1,000 in excavating the cellar and the expense of the services of the architect and in having the land surveyed. As we read the opinion of the court, the holding of a vested right in the permit was based on the fact that petitioner in good faith relied upon the permit in purchasing the property and incurring the expenses enumerated in the statement of facts. We do not think the wording of the opinion justifies respondents' conclusion as stated in his brief that `the court held that where a permit had been secured and the owner had entered into contracts for the erection of the building, a subsequent zoning ordinance will not revoke the permit for the reason that a vested right had been secured.' The conclusion of respondents drawn from the opinion, if *200 correct, is against the weight of authority in other jurisdictions and is not the rule in this state (Brougher v.Board of Public Works, etc., supra.)"
Shreveport v. Dickason,
The judgment is reversed.
Richards, J., Shenk, J., Waste, C.J., Seawell, J., Curtis, J., and Langdon, J., concurred.