Bartholomae Oil Corp. v. Seager

BARNARD, P. J. —

In this action the plaintiff sought an injunction to restrain the defendants from proceeding with the erection of a dwelling in accordance with a permit issued to them by the city of Newport Beach.

The defendants owned and were erecting this house upon lot 7 in a certain block on Balboa Island. The lots in this block face what is known as South Bay, the shore line being an are instead of a straight line. There is no regular street in front of these lots, there being only a 10-foot sidewalk between the property lines and the beach. The plaintiff owned lot 6, adjoining defendants’ lot on the west, and also owned lot 5 to the west of lot 6, upon which was a residence occupied by the plaintiff’s president. The front of that residence was within 3 feet 8 inches of the property line.

Pursuant to chapter 838 of the Statutes of 1929, the city of Newport Beach adopted a zoning ordinance known as Ordinance No. 440, which provided that residences on lots in this block should be set back ten feet from the property

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lines. Section 11 of this ordinance provided that the city-council, upon the report and recommendation of the planning commission, should have the power to vary the application of the set-back provisions of the ordinance; and further provided:

“If the Planning Commission finds that detriment or injury to the neighborhood will not result from issuance of a permit as applied for, it may approve said permit and transmit the same, together with a complete report of its findings and recommendations, to the City Council for approval and endorsement. . . .

“In approving any variance or recommending the issuance of any conditional permit under the provisions of this section, the Planning Commission shall designate such conditions in connection therewith as will in its opinion secure substantially the objectives of the regulation or provision to which such variance is granted, or provide adequately for the maintenance of the integrity and character of the district in which such conditional permit is granted, and shall provide the Building Inspector with a copy of the same.”

In accordance with this section the defendants made application for such a variance and for permission to erect a dwelling on lot 7, the front of which should be within one foot of the property line. The planning commission approved the variance and recommended to the city council that it be granted. The city council approved the same and ordered a building permit issued, which was done. Work on the building was commenced and this action followed. The court found in all respects in favor of the defendants and from the ensuing judgment this appeal was taken.