Phil Anthony Homes, Inc. v. City of Anaheim

MONROE, J. pro tem.

*

—The petitioner and appellant brings this proceeding for a writ of mandate to compel the city of Anaheim and its city council to issue an order granting a zone variance in regard to property owned by petitioner. The property in question is in the area that is neighboring

[270]

to Disneyland. The property in the immediate vicinity is occupied by motels, restaurants and a service station. Petitioner acquired the property in April of 1957, and in the following months submitted to the city planning commission its petition for a variance to permit the construction of a commercial swimming pool and an office for the sale of swimming pools, which petition was regularly granted in accordance with the zoning ordinance of the city of Anaheim.

An appeal to the city council was taken by Disneyland, Inc. and by Leo Friedman, an owner of near-by property. On July 16, 1957, after public hearing, the city council vacated the order of the planning commission and disapproved and denied the request for variance.

This action was commenced for the purpose of testing the validity of the action of the city, and to procure a writ of mandamus compelling the allowance of the petition for variance. After trial the court found the issues against the contentions of the petitioner and rendered its judgment accordingly. This appeal followed.

It is contended that the action of the city council was invalid for the reason that there was no sufficient compliance with the requirements of the Anaheim city ordinance, with regard to notice. Appellant’s attack is centered upon the issue of whether a notice was posted in front of the property, as required. The trial court, upon a conflict of the evidence, specifically found that notice was given by publication in the Anaheim Bulletin, a newspaper of general circulation, and by mailing postal card notices to the owners of property within a radius of 300 feet of the exterior boundaries of the property, and by posting notice near the property. The court found that the notices thus given were given not less than 10 days prior to the hearing and in all respects as required by the city ordinances.

The witness Bichard Guthery testified positively to the posting of the required notice upon a telephone pole adjacent to the street at the front of the property and a “short distance” south of it. It appears that there existed a telephone pole a short distance to the north of the property and another one a short distance to the south. It was later established by the trial court that the pole to the south was approximately 80 feet south of the boundary and that there was no telephone pole directly in front of the property. The matter was considered by the trial court upon the trial, and further at the