London v. Robinson

STURTEVANT, J.

In this action the plaintiff sought a decree restraining the owner, Robinson, and the contractor, Moren, from erecting a building on Ballpoint Avenue near Parnassus Avenue in San Francisco. In his complaint the plaintiff alleges that such erection would be in violation of certain zoning ordinances.

Heretofore Ordinance 5464 (N. S.) was enacted. Thereafter the defendant Robinson purchased a lot on Hill-point Avenue, adopted plans and specifications for the erection of a building, entered into a contract therefor, and a building permit was issued to him. All fees were paid and thereafter the building contract, together with plans and specifications, was filed for record in the recorder’s office at 11:15 A. M. on July 27, 1925. In the meantime such proceedings were had that Ordinance 6708 (N. S.) was framed and was passed by the board of supervisors during the afternoon of July 27, 1925. By the terms of the charter of the city of San Francisco the last-named ordinance took effect August 7, 1925. On August 13, 1925, this suit was commenced. It is based on the theory that after the enactment of Ordinance 6708 (N. S.) the right of the defendants to proceed with the erection of the building ceased. The trial court made findings in favor of the plaintiff and the defendants have appealed.

Among other contentions the defendants assert that they have not violated any ordinance. We think the assertion is well founded. Turning first to the provisions of the ordinance first enacted it will be found that section 9 was

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not intended to make unlawful buildings and uses then in existence or use. Turning next to the provisions of section 17, it is clear that the entire section is addressed to buildings not constructed but for which permits had theretofore been duly issued. The language used in that section shows clearly that it was addressed to situations as they existed on the date that Ordinance 5464 took effect and not otherwise. Furthermore, that section clearly indicates that said ordinance was not to be retroactive so far as said permits were concerned. That same ordinance provided that alterations or changes in districts might be made. Then in the second paragraph of section 11 we find the following: “If any area is hereafter transferred to another district . . . the provisions of