City of San Mateo v. Hardy

NOURSE, P. J.

The plaintiff appeals from a judgment denying an injunction to restrain defendant from violation of a municipal zoning ordinance and requiring him to remove certain alterations in a building which were made in violation of the ordinance.

On June 7, 1937, the city of San Mateo adopted a comprehensive zoning ordinance (Ordinance No. 446) which was a revision and reenactment of various prior ordinances relating to the zoning of the city for business and residential purposes. By its terms the city was divided into several districts for the regulation of the construction and maintenance of buildings. Section 4 relating to “First Residential District Regulations ('Single Family)” specified as particular uses permitted therein: “a. Dwellings, b. Public Buildings.” Section 1 of the Ordinance defined “dwelling” as “a residence building containing but one kitchen, designed and/or used to house not more than one family . . . and not more at anytime than two paying guests of such family.” Section 12 provides that any use forbidden by the ordinance but lawfully existing at the effective date may be continued. Section 13 permits an owner to apply for a reclassification of his property and permits the city council to relieve the owner from any inequitable burden resulting from the general classification.

In 1942 defendant purchased a two-story family home in the first residential district and, without applying for a reclassification, and in disregard of the orders and warnings of the city authorities, made alterations in the building by which the upper story of the residence was converted into a separate apartment consisting of a living room, kitchen, bedrooms and bath. This separate apartment was rented by defendant to a separate family at a substantial monthly rental. On the

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trial these facts were conceded. In defense there was an abortive attempt to prove that the former owner had violated the ordinance by permitting her grandchildren and other members of her family to live in the home while she occupied it and while she was on vacation. This evidence related to conditions existing in the years 1938 and 1939. The ordinance became effective July 7, 1937, hence the evidence did not pretend to prove a lawfully existing use at the time of the adoption of the ordinance.