Wilson v. Edgar

California Court of Appeal Dec 6, 1923 No. Civ. No. 4833.Published

Before: Tyler

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Holding. The court held that a zoning ordinance's saving clause allowing the continuation of a nonconforming 'use' refers to the specific business being conducted at the time of the ordinance's passage, not to the entire class of businesses permitted in the district. Consequently, a nonconforming use cannot be replaced by a different nonconforming use.

Issues

Whether a zoning ordinance's saving clause for existing nonconforming uses permits the substitution of one nonconforming use for another.
Whether the term 'use' in the ordinance refers to the specific business conducted on the premises or the entire class of businesses permitted in the district.

Disposition. writ issued

Quotations verified verbatim against the opinion

“In the phrase “any lawful use existing in any building may be continued therein” (which is but a transposition of the language of the ordinance) the word “use” plainly refers to the particular business conducted in the building.”

“The ultimate purpose, however, is plainly that nonconforming uses of premises shall gradually be eliminated, which purpose would be practically defeated if one nonconforming use might be succeeded by another.”

TYLER, P. J.

Petition for

mandamus

to compel the issuance of a warrant of arrest for the violation of a zoning ordinance regulating the use of buildings.

The petition alleges that on July 20, 1920, a certain ordinance was passed by the council of the city of Berkeley, districting the location of residences and certain trades, and the location of buildings designed for certain specified

[655]

uses, establishing the boundaries thereof and providing a penalty for the violation of the ordinance. That defendant Robert Edgar is the regularly elected, duly qualified and acting justice of the peace of the city of Berkeley, county of Alameda, state of California, and that all complaints for violation of ordinances of the city of Berkeley are required to be issued out of the court of said justice of the peace. That Charles S. Shuey and Robert A. Shuey are residents of the city of Berkeley and the owners of a building on the east side of Telegraph Avenue, between Stuart and Oregon Streets, in said city of Berkeley, occupied and used by them prior to July 1, 1920, for a milk bottling and distributing station, and that said use of said property was continued by them on said premises until the early part of the year 1923, when said use was terminated; that thereafter, on or about the first day of August, 1923, the said Shueys leased the said building or a portion thereof to one E. Seidel, a resident" of the city of Berkeley, for the purpose of conducting therein a dyeing and cleaning works, and that said E. Seidel thereafter established in said building a dyeing and cleaning works or business, which he has continued to conduct and is now conducting therein. That plaintiff Wilson is a resident of the city of Berkeley, residing at number 2815 Telegraph Avenue, in a house which he owns, and that this house, together with the adjoined residence owned by him, are directly south in the same block and adjoining said building owned by said Shueys, and that said houses are occupied by tenants of said Wilson; that plaintiff Kovacevic resides at number 2803A Telegraph Avenue, in one of the apartments of a building owned by him at the southeast corner of Stuart Street and Telegraph Avenue adjoining the property of said Shueys herein-before referred to; that said building contains also an apartment and three stores occupied by tenants of said last-named plaintiff.

Wilson v. Edgar

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TYLER, P. J.

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