Stone v. Turton

WOOD, P. J.

This is an appeal by the building superintendent and the members of the Planning Commission of Culver City from a judgment in a mandamus proceeding: (1) ordering the superintendent to grant the application of petitioners for a building permit to construct apartment buildings on three lots in Culver City, and to issue the permit, and (2) ordering the members of the commission to desist from interfering with the granting of said permit.

In January 1955 petitioners were the owners of a parcel of land, consisting of approximately 40 acres zoned for singlefamily residential use, in Culver City. In that month petitioners filed, in the office of the city engineer of the city, a tract map of Tract No. 21302, which tract consisted of a portion of the parcel of land referred to above divided into 97 lots. On August 10, 1955, the planning commission of the city granted petitioners’ application for a zone variance with respect to Lots 1 through 10 of Tract No. 21302, whereby petitioners were authorized to construct apartment houses on said lots.

At all times herein mentioned section 16.10, subdivision A, of Ordinance No. CS-147 of the city provided, in part: “If the use authorized by any variance, exception or modification is, or has been, unused, abandoned or discontinued for a period of six (6) months, or the conditions of the variance have not been complied with, said variance, exception or modification shall become.null and void and of no effect.”

In October 1956 (approximately 14 months after the application for a zone variance was granted) the building department

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of the city issued a building permit authorizing petitioners to construct an apartment house on Lots 4, 5, and 6 of Tract No. 21302. In May 1957 the apartment house was completed. In June 1957 the city and petitioners entered into an agreement regarding the conditions to be fulfilled by petitioners with respect to subdividing Tract No. 22611, which tract consisted of the portion of the 40-acre parcel which was not included in Tract No. 21302. In said agreement it was stated that the zone variance granted to petitioners on August 10, 1955, “was validly exercised within the meaning of Ordinance No. CS-147.” In August 1957 (approximately two years after the application for a zone variance was granted, and approximately three months after the apartment house on Lots 4, 5 and 6 was completed) the building department of the city issued a building permit authorizing petitioners to construct an apartment house on Lots 7 and 8 of Tract No. 21302, and on one lot in Tract No. 22611. (Appellants state that the lot in Tract No. 22611 was substituted for a lot in Tract No. 23102.) In September 1957 the city council of the city approved the final tract map of Tract No. 22611 by Resolution No. CS-3671, in which it was stated that the variance granted on August 10, 1955, “was validly exercised within the meaning of Ordinance No. CS-147.” In February 1958 the city and petitioners entered into an “Amended Agreement,” which, by its terms, superseded the agreement made on June 1957, regarding the conditions to be fulfilled by petitioners with respect to subdividing Tract No. 22611, and provided that all conditions be complied with within one year from the date thereof. In April 1958 the apartment house on Lots 7 and 8 of Tract No. 21302 and one lot of Tract No. 22611 was completed.