City of Beverly Hills v. Anger

CONREY, P. J.

In this action, brought to acquire land for public park purposes, it was found that respondents were the owners of a part of the land sought to be taken. This land of respondents is known in the record as parcel 10, and is a lot having a frontage of 80 feet on Palm Avenue and 150 feet on Santa Monica Boulevard in the City of Beverly Hills. By verdict of a jury the market value of parcel 10 was determined to be the sum of $18,000. Accordingly, that amount was awarded to respondents.

The plaintiff, in presenting its appeal from the judgment, contends that the court erroneously gave to the jury certain instructions, by reason whereof the jury was led to appraise at an unduly high market value the said parcel 10; in other words, that there was prejudicial error, amounting to a miscarriage of justice.

[628]

Parcel No. 10 was included within a subdivision of lands which, in the conveyances to lot purchasers, were made subject to certain restrictions designed to limit the use of the property to use for single family residences. These restrictions had not been released by any party to the records of title. Parcel No. 10 was also within territory which, by a city ordinance of December 4, 1922, had been placed within a residential zone.

The instructions to which appellant takes exception are these:

(a) “If you find from the evidence in this case that the property herein in question cannot be beneficially used or sold for single residence purposes, but that the same, by reason of change in conditions, has become usable and valuable only for income purposes, such as apartments, hotels and/or business, then you are to presume that the city council in due and proper time will so change and modify the zoning ordinances of the city of Beverly Hills covering this property that the same will be zoned for such income producing purposes. ’ ’

(b) “It is not the policy of the law to so zone property or territory as to prohibit the use or the sale thereof, and the law presumes that if and when changes take place that render the property not usable or unsalable for the purposes for which the same is sold, the authorities in due and proper time will so change such zoning ordinances as to let the property be used or developed and sold for the purposes for which it can be beneficially used and sold.”