Johnston v. Superior Court

RICHARDS, J. pro tem.

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This is a proceeding in certiorari to review an order of respondent court finding the defendants not in contempt for violation of the injunctive provisions of a judgment of respondent court.

Petitioners are new and used-ear dealers and are the owners of certain real property in the city of Claremont. On April 17, 1951, the property in question was zoned by Ordinance Number 441 as R-l, single family residence, and on December 14, 1954, it was rezoned by Ordinance Number 513 as C-2, commercial use, which includes automobile sales and service. A referendum election on May 3, 1955, resulted in the defeat of Ordinance Number 513. Thereafter petitioners filed their action in respondent court against the city of Claremont, its five councilmen, city attorney, and three building inspectors, and a judgment in favor of petitioners was entered on March 27,1955, declaring the referendum proceeding void and decreeing that the petitioners were entitled to use their property for the conduct of an automobile dealership business pursuant to Ordinance Number 513. The injunctive provisions of the

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judgment are: "That so long as said Ordinance No. 513 of defendant City of Claremont remains in force and effect, plaintiffs, . . . shall have a clear legal right to the issuance ... of a permit or permits to erect and maintain such building or buildings as requested in said application or applications so presented.” And further, “that so long as said Ordinance No. 513 of defendant City of Claremont remains in force and effect, the . . . defendants . . . are hereby forever restrained and enjoined from interfering in any manner with plaintiffs, ... in using said Boulevard Frontage for an automobile dealership or using the same for any other commercial uses as authorized and permitted in a C-2 Zone.”

Defendants appealed from the judgment and the appeal is now pending. After the judgment was entered, petitioners paid the permit fee and made several unsuccessful demands for the issuance of a building permit. On June 27, 1956, and without a building permit having been issued, the petitioners began the construction of a commercial building on the property in accordance with the plans previously approved by the city. On July 3, 1956, upon the complaint of one of the building inspectors, a complaint was issued against the petitioner Philip F. Johnston charging him with a misdemeanor in erecting a building upon the property without first having obtained a permit, and the trial is still pending. On July 9, 1956, the city of Claremont filed an action against the petitioners to enjoin them from erecting the commercial building upon the property until a permit had been obtained. Demurrers to the complaint were sustained and upon failure to amend a judgment of dismissal was entered. On July 26, 1956, the defendants applied for a writ of supersedeas to stay the enforcement of the judgment now before us. This application was denied without opinion.