People v. Ryan

California Court of Appeal Oct 9, 1936 No. Civ. 10032Published

Before: Sturtevant

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Holding. The court held that the defendant's pending permit application did not bar a public nuisance action, and that the trial court's order for the demolition of the dilapidated stable was supported by evidence and zoning ordinance limitations.

Issues

Whether a pending permit application for a stable business bars a public nuisance action.
Whether the board of supervisors' resolution to abate the nuisance violated city charter provisions regarding departmental interference.
Whether the judgment ordering the demolition of the stable was overly broad given the evidence of dilapidation and zoning restrictions.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The proceedings in the application for a permit were in no manner a bar to this action.”

“The trial court heard the evidence and it visited the premises. The record shows that its findings above mentioned, and all of them, are sustained by the evidence.”

“It is clear, therefore, that, as seen by the trial court, the building has become so dilapidated that to repair it to such an extent as to remove the objections of the health authorities is prohibitive”

STURTEVANT, J.

The defendant has appealed from a judgment determining that his stable is a public nuisance and ordering it abated.

As we understand him he contends that at the time this action was commenced, and for a long time prior thereto, he had pending an application for a permit to maintain and operate said stable; that the respective municipal authorities refused to grant him a permit without stating their reasons for such refusal and giving him an opportunity to comply with any demands for repairs and alterations.

(Ryan

Andriano,

91 Cal. App. 136 [266 Pac. 831].) These statements are true. But the decision in that case was filed April 19, 1928. After the

remittitur

went down, each party from time to time served on the other certain notices and demands. However, no permit was issued. In 1932 the present charter took effect. New ordinances were enacted to carry it into effect. Certain powers formerly vested in the board of “supervisors were, by the provisions of the new charter, vested in the director of health. Each party served more demands, notices, etc., but no permit was issued. On October 26, 1933, this defendant commenced a proceeding to obtain a writ of

mandamus

to compel the director of health to issue said permit. The plaintiff there

[3]

upon commenced this action. Having called to the trial court’s attention his numerous efforts to obtain a permit to conduct a stable business and the numerous delays, refusals and neglects of the municipal officers in and regarding the application for a permit, the defendant claimed the complaint in this action should be dismissed. He repeats that contention in this court. We find no merit in it. The proceedings in the application for a permit were in no manner a bar to this action. But the contention of the defendant is, in effect, to claim that the facts recited constituted a bar. If the permit had been issued it will hardly be claimed that it would have authorized this defendant to conduct the stable in such a manner as would create a nuisance or that it would authorize him to conduct a stable business in a building which was so dilapidated as to be a nuisance.

People v. Ryan

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STURTEVANT, J.

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