McCOY, J. pro tem.
These are appeals from a judgment of the superior court denying a petition for a writ of mandate
In its first action appellant Spindler Realty Corporation (hereafter referred to as Spindler) sought a writ of mandate or writ of certiorari commanding John Monning, as general manager and superintendent of building of the department of building and safety of the City of Los Angeles, to issue a building permit for which it had applied and to rescind his action denying the permit. In its second action, Spindler sought an injunction against the enforcement of a certain zoning ordinance and a judgment that the ordinance is null and void insofar as it affects Spindler's property. For convenience, Monning and the City of Los Angeles are here referred to collectively as the City. The actions were consolidated for trial and separate judgments were entered in each action denying the relief sought by Spindler. Pursuant to stipulation, the appeals are consolidated for hearing and decision here.
There is no dispute as to the following facts as found by the court in both actions. In 1948 Spindler was the owner of the subject property consisting of approximately 21 acres in the Santa Monica Mountains, located on Mulholland Drive near its junction with Coldwater Canyon Drive. Spindler also owned substantial adjacent property. In September of that year, on Spindler's application, the subject property was rezoned from R-1 to R-5, thus permitting the construction of a hotel or apartment house or other multiple dwelling. At that time the City refused to rezone Spindler's adjacent property from R-1 to C-1 so that it could be used for commercial purposes.
In April 1956, in proceedings instituted by Spindler, the municipal code was amended to authorize the carrying on of incidental business and recreational facilities in any hotel or apartment house situated on property zoned R-5, subject to certain conditions not material here. Shortly thereafter, Spindler obtained a conditional use permit for such use of its property through November 1956. This conditional use was later extended and remained in effect until December 4, 1961. In August 1956 Mulholland Drive was designated as a major highway.
In June 1960, in connection with the development of a comprehensive master plan of land use for that part of the Santa Monica Mountains including the subject property, all the property adjacent to and surrounding the subject property
In August 1961 the Board of Building and Safety Commissioners modified its grading regulations to permit Spindler to develop a building site in an area other than a subdivision. On September 27, 1961, a grading permit was issued to Spindler for the preparation of a building site on the subject property without reference to any particular proposed use of the property as to the number, size or type of buildings to be erected on the site. Later Spindler filed the required bond of $275,000 conditioned on its faithful compliance with the terms and conditions of the grading permit. The City also granted Spindler's application for a class "B" permit, permitting Spindler to grade in the City's right of way. It also filed plans for temporary erosion control methods which were approved by the Department of Public Works. On November 17, 1961, the City also authorized Spindler to extend the toes of fill-slopes on certain adjacent property owned by C.W. Foster, Inc.
On October 9, 1961, J.A. Thompson & Son started work on the subject property under the grading permit, consisting of brush clearance and access road leveling. The property had been staked by surveyors a few days earlier. On October 18, 1961, "in reliance on said R-5 zoning and said Grading Permit and other administrative acts" of the City, Spindler, in good faith, entered into a contract with J.A. Thompson & Son for the grading of the subject property in accordance with the building permit. By this contract Spindler agreed to pay J.A. Thompson & Son not less than $562,796, based on the actual amount of the work done. Work under this contract was discontinued on March 8, 1962, except for putting the development and maintaining it in a safe condition.
On October 26, 1961, the city planning commission, finding that "no development activity has occurred on the property," initiated proceedings to consider the rezoning of the subject property from R-5 to R-1-H. When this resolution was adopted the planning commission was mistakenly informed that no physical development work had been done on the property and that Spindler had not talked with its architect for over two and one-half years. On October 31 Spindler asked for a reconsideration of the resolution which had been adopted without notice. Following a public hearing before a hearing examiner
With the several dates referred to in the foregoing paragraph in mind we turn to certain other findings. The court found that on October 27, 1961, the grading operations "had reached a point where it would have been highly dangerous in the event of rainfall to have done nothing for the protection of property owners below the grading operations" and that, under this and other circumstances spelled out in the finding, Spindler's decision immediately after October 27, the day on which he had been informed of the planning commission's resolution of October 26 "to proceed with the grading was an entirely reasonable one to make...." As of October 26 "a substantial portion of the grading under the grading permit had been performed" on the subject property; that "at the very least [Spindler] had acquired a vested right to complete the grading under the grading permit issued to it, and that if it should be the law that a vested right under said grading permit gives petitioner a vested right not only to complete the grading but also to build as permitted by R-5 zoning, a vested right to so build, subject to all other laws and ordinances applicable, had arisen."
After the property was rezoned R-5 in 1948, Spindler sought to develop the property for a hotel. When it became apparent in 1960 that financing a hotel was not feasible, Spindler had plans prepared for an apartment house complex, proceeding therein in good faith "at least until October 27, 1961," in reliance on the R-5 zoning. Before the commencement of grading in October 1961, "the best and economically the most feasible use for the subject property was for R-5 multiple family dwellings" although on October 27 extensive grading would have to be done to develop it for any purpose.
On February 23, 1962, Spindler filed plans for a high-rise apartment complex and an application for a building permit, but because these plans were inadequate for checking it asked the Department of Building and Safety not to check them and to wait for new plans. New plans were filed on March 27. On April 13 Spindler applied for a "foundation only" building permit, but this was denied because the site was not suitable for immediate construction, even if it had remained zoned R-5.
The court found that from 1948 through the year 1964 Spindler spent $522,541.55 in the development of the subject property. Of this, $305,287.12 was spent during the period of November 1, 1961 through April 30, 1962. The obligations accruing before January 1, 1961, were incurred in connection with both the hotel development and the apartment development. All those after January 1, 1961, were incurred in connection with the apartment house development.
Ever since June 1, 1962, the Department of Building and Safety has refused to issue a building permit, although at all times Spindler has "sincerely desired" such a permit. The parties stipulated that Spindler exhausted all administrative remedies available to it before turning to the court for relief.
Certain other findings will be commented on when we consider Spindler's contentions on these appeals.
Appellant's primary contentions common to both actions are: (1) that on the facts found by the trial court it had a vested property right in the development of its property, of which it could not be constitutionally deprived; (2) that it had acquired a nonconforming use which was protected under the provisions of section 12.23C of the Los Angeles Municipal Code; and (3) that the ordinance adopted March 8, 1962, was oppressive and discriminatory and bore no relation to the public welfare or safety and is unconstitutional on that ground.
Appellant's Claim That it Has a Vested Right
We assume at this point that the ordinance adopted March 8, 1962, is valid, "`and insofar as it can be complied with and applied without a denial of constitutional rights it will be held
Section 91.0201 of the Los Angeles Municipal Code provides that no person shall commence or perform any grading without a permit. Under the grading regulations of the City, grading may be conducted only for the purpose of building. The same section of the municipal code also provides that a building permit must be obtained before commencing the construction of any building.
Spindler concedes that it has no building permit. Its contention is that its claim to a vested right to proceed with the building of multiple dwellings does not depend upon the issuance of a building permit but upon a showing that after the R-5 zone was established it relied in good faith on the permissive actions and authorizations of the City, including the issuance of the grading permit, all taken pursuant to existing zoning, and that it incurred "substantial construction costs and like obligations" in reliance on such permissive actions and authorizations. Spindler seems to contend that, in view of the findings of the trial court in its favor on these matters, the City was estopped to adopt the ordinance rezoning its property and was estopped to refuse to issue a building permit by reason of that ordinance. Of course, Spindler did not incur any "construction costs," and the trial court did not so find. Further the court found only that "in reliance on said R-5 zoning petitioner, at least until October 27, 1961, at all times proceeded in good faith to complete said engineering and architectural plans."
The trial court found that as of October 26, 1961, Spindler had at the very least acquired a vested right to complete the grading under its grading permit.
Although we find no decisions squarely in point, the case here is closely analogous to Anderson v. City Council, 229 Cal.App.2d 79
The fact of the matter is that at all times after October 27, 1961, Spindler was taking a calculated risk. That was the day that Spindler learned of the resolution adopted the day before, initiating proceedings for the rezoning of the subject property from R-5 to R-1-H. It is true that from 1959 and at least until October 27, 1961, Spindler was proceeding in good faith to complete its engineering and architectural plans for an apartment house complex on the property in reliance on the R-5 zoning, as the court found, and doubtless in reliance on the totality of the permissive actions and authorizations of the City during that period. The court also found that on October 26, Spindler "had every reasonable hope and expectation that the proposed rezoning of the subject property from R-5 to R-1-H would not eventually become the law. In addition, the legal status of the date of October 26, 1961, as a date after which petitioner might eventually be found to have expended money at petitioner's risk was, and still is, uncertain. It was further uncertain at the time whether it would eventually be found, as a
In City of Tucson v. Arizona Mortuary, 34 Ariz. 495 [272 P. 923], the property owner had purchased land, obtained a building permit and let a contract for the building of a mortuary, but before any material amount of construction had been done it was fully advised that, on the application of a majority of the property owners in the area, the common council of the city was considering an ordinance which would have prevented the use of the property for that purpose. "Instead of awaiting the action of the council, it apparently proceeded on the theory either that the ordinance would not be passed, or that, if passed, it was void. Having taken that chance, it may not now be heard to set up any loss to it which arose after it had knowledge that the ordinance was being considered. But even if plaintiff suffered some damage through things occurring before the protest, financial loss, no matter how severe, does not of itself give parties a vested right to continue a business, no matter how long it has been conducted, if the business is one whose location may be regulated under the police power." In holding that the plaintiff was not entitled to an injunction against the enforcement of the ordinance, the court quoted with emphasis from Hadacheck v. Sebastian, 239 U.S. 394 [36 S.Ct. 143, 60 L.Ed. 348], where it was held, on review of a judgment of the Supreme Court of this state involving the validity and enforcement of a zoning ordinance (165 Cal. 416 [132 P. 584, L.R.A. 1916B 1248]), that the imperative necessity for the existence of the police power "precludes any limitations upon it when not exercised arbitrarily. A vested interest cannot be asserted against it because of conditions once obtaining." Furthermore, said the court in City of Tucson, "any loss for money expended after plaintiff had notice of the proposed ordinance was at its peril, and cannot be considered as a vested right, entitled to any consideration." Rosensweig v. Crinnion, 139 N.Y.S.2d 172, and Kiges v. City of St. Paul, 240 Minn. 522 [62 N.W.2d 363], are to the same effect.
The decisions from other jurisdictions cited by Spindler are not persuasive. In Herskovits v. Irwin, 299 Pa. 155 [149 A. 195], for example, the court held that where, upon application for a building permit to construct a six-story building which complied with the zoning laws then in effect, the owners were issued a permit for "excavation and form work in accordance with foundation plan submitted," and thereafter incurred substantial expense and obligations and commenced work on the excavation, they acquired a vested right to a permit to complete the building of which they could not be deprived by a subsequently enacted amendment to the zoning ordinance limiting the permissible height of buildings. It may well be, as the court there said, that it would not satisfy "a proper sense of justice" to say, in the circumstances of that case, a vested right was created in the foundations of the six-story building but not in the building itself. There the limited permit had been issued on an application for a building permit accompanied by drawings which showed the general scheme of the building, and the court held that in reality the owners were simply taking "a second step in their effort to obtain a formally complete permission to erect their building." That is not the case here.
Such cases as People ex rel. Skokie Town House Bldrs., Inc. v. Village of Morton Grove, 16 Ill.2d 183 [157 N.E.2d 33], and Fifteen-Fifty North State Bldg. Corp. v. City of Chicago, 15 Ill.2d 408 [155 N.E.2d 97], are distinguishable here, in that in each of those cases a building permit had been issued and was later revoked. It is true that in the City of Chicago case, the court approved the decision in Deer Park Civic Assn. v. City of Chicago, 347 Ill.App. 346 [106 N.E.2d 823], that any substantial change of position, expenditures or incurrence of obligations occurring under a building permit or in reliance upon the probability of its issuance is sufficient to create a right in the permittee and entitles him to complete the construction and use of the premises for the purposes originally authorized irrespective of a subsequent zoning or change in zoning classification.
In short, we are not convinced that a grading permit is analogous to a building permit, as contended by Spindler, even though under the regulations of the Department of Building and Safety, a grading permit on hillside property may only be granted for building purposes and a building permit would not have enabled it to build without a previously issued grading permit.
This contention has no merit. It was expressly held in Brougher v. Board of Public Works, 205 Cal. 426, 434-435 [271 P. 487], in which the sequence of events is substantially the same as that in the case here, "that petitioners were not entitled to have granted to them the permit applied for by merely showing that they had complied with all the laws and ordinances effective in said municipality at the time of the filing of the application with said Board of Public Works when the further fact appeared that before final action had been taken on their application the ordinances under which said application had been made had been amended by the board of supervisors." As the court there said: "In such cases there is no opportunity for any privilege to ripen into a vested right, for the reason that no privilege, in the sense used
We come back then, to Anderson v. City Council, 229 Cal.App.2d 79, where the court said (p. 89 [40 Cal.Rptr. 41]) that the property owners there "have been unable to cite a single California decision in which a property owner has been held to have acquired a vested right against future zoning without having first acquired a building permit to construct a specific type of building and having thereafter expended a considerable sum in reliance upon said permit. Such authority would appear nonexistent for the reason that the vested rights theory is predicated upon estoppel of the governing body.... Where no such permit has been issued, it is difficult to conceive of any basis for such estoppel." (Italics by the court.)
Appellant's Claim to a Protectable Non-conforming Use
Appellant also claims that the facts found by the trial court established that it has a nonconforming use protected by section 21.23C of the Los Angeles Municipal Code. The argument is that what is protected is the "intended" use or the purpose to which the land "may be put"; that the preparation of land for the employment of buildings is a "use" of the land for which it is entitled to protection; that where "buildings are employed" in connection with such "intended" use there is no amortization period for the liquidation of the use; and that if this were not so, ordinance 121338 would be unconstitutional.
This argument is not tenable, in that it is erroneously based on the definition of "use" in the municipal code and is contrary to the law. "Use" is there defined as: "The purpose for which land or a building is arranged, designed, or intended or for which either land or a building is or may be occupied or maintained."
The Validity of the Ordinance
It is further claimed by appellant that ordinance 121338 is arbitrary, discriminatory and confiscatory in its application to the subject property and bears no reasonable relation to the public safety and welfare. Accordingly, it asserts that, considered as findings of fact, the conclusion of the trial court incorporated in findings 45, 46 and 47 is without support in the evidence.
The rule as to the function of the courts in such cases is well summed up in Lockard v. City of Los Angeles, 33 Cal.2d 453, 461-462 [202 P.2d 38, 7 A.L.R.2d 990]: "The duty to uphold the legislative power is as much the duty of appellate courts as it is of trial courts, and under the doctrine of separation of powers neither the trial nor appellate courts are authorized to `review' legislative determinations. The only function of the
Appellant complains that the trial court "did not find on any of the basic facts relating to the issue," and refers particularly to paragraphs 42 to 47 of its proposed Findings of Fact and Conclusions of Law.
This action was tried before the Honorable Otto M. Kaus, then a judge of the superior court, sitting without a jury. Shortly before the conclusion of the evidence, Judge Kaus had been appointed a Justice of the District Court of Appeal and had advised counsel that he desired to take his oath on December 31, 1964. On December 23, 1964, Judge Kaus announced his decision in favor of the City, saying in part: "On the disputed facts I have jotted down some things I feel I ought to find on but there will undoubtedly be others and I want you to feel free to request specific findings of fact, because, as I have indicated to you, I feel the matter ought to be honestly and fairly before the Appellate Court." After stating some of the matters on which findings should be made, Judge Kaus said: "Now, I don't know whether anything more specific ought to be found as to that. If so, I will gladly listen to suggestions." The minute order for that day reads in part: "The Court finds for the City. Findings ordered."
Counsel again appeared before Judge Kaus on December 31, 1964, "for the purpose of settling the findings, conclusions and judgment in this matter." At that time counsel stipulated on the record "to a waiver by both sides of any time requirements with respect to the service or signing by the Court for findings and conclusions of law," that is, "the ten-day time limitation of CCP, 634," but not any other rights the parties might have "in the action of the execution and the findings and the judgment." They then stipulated that Spindler "may lodge with the Court this day its proposed findings of fact and conclusions of law in action No. 798,477 and that he may be deemed to have objected to any departure from such proposed findings of fact and conclusions of law found in the actual findings of fact and conclusions of law made by the Court in action No. 798,477 and action No. 799,416, and that the Court may make a Minute Order thereon and that the Minute Order together with the proposed findings of fact and conclusions of law become a part of the record."
Section 634, Code of Civil Procedure, was amended in 1959, providing for "requests for special findings" and "a written request for a specific finding" on some particular issue. (Stats. 1959, ch. 637, p. 2614.) "The purpose of the legislation was to compel trial judges to make findings on all material issues of fact." (Calloway v. Downie, 195 Cal.App.2d 348, 353 [15 Cal.Rptr. 747].) The section still provides, however, for the service of "proposed findings," "objections [and] counterfindings" in all cases where findings are to be made. Bilger v. Bilger, 54 Cal.App.2d 739, 743 [129 P.2d 752], on which Spindler relies, is not in point here, since that case was decided before the 1959 amendment to section 634.
Section 634, Code of Civil Procedure, provides that a request
The Court's Failure to Make Certain Findings
The change in the findings effected by the court and its failure to adopt paragraphs 32 and 33 of Spindler's proposed findings of fact was not error. The record does not show that Spindler made any written request for specific findings in accord with those paragraphs of its proposed counterfindings, either before the entry of the judgment or in conjunction with its motion under section 663 of the Code of Civil Procedure. As we have noted above, the submission of proposed counterfindings does not serve this purpose. We are satisfied that the trial court made specific findings on all the issues and as to all facts necessary to support the judgment.
Errors of Law
In view of what we have said above on the principal issues in the case, there was no error in these rulings.
The judgments appealed from are affirmed. The purported appeals from the orders denying the motions of petitioner and plaintiff to vacate and set aside the judgment and to enter new and different judgments are dismissed.
Herndon, Acting P.J., and Fleming, J., concurred.
A petition for a rehearing was denied July 27, 1966, and