Christian Service Society v. County of Butte

WARNE, J. pro tem.* Plaintiff, Christian Service Society, a membership cemetery corporation, successor in interest to the Chico Burial Society, appeals from a judgment denying plaintiff relief in an action for declaratory relief and declaring that plaintiff had established no preexisting or nonconforming use for cemetery purposes in the land involved herein prior to the adoption by Butte County of a certain interim zoning ordinance and a succeeding permanent zoning ordinance.

On August 4, 1953, plaintiff, through its predecessor in interest, acquired possession of certain real property consisting of 14 acres, pursuant to a contract of purchase executed by it and the owners thereof whereby the Chico Burial Society agreed to purchase the property for the purpose of establishing a cemetery. The agreement provided that no interments in the property should be made until $1,000 had been paid and that only one acre should be dedicated for use for cemetery purposes until the total purchase price had been paid.

Pursuant to the authority vested in it under the provisions of the Health and Safety Code, plaintiff recorded, on September 3, 1953, its declaration of intention to use the land in question for cemetery purposes. Section 8525 of that code provides: “A cemetery authority may execute a declaration acknowledged so as to enable it to be recorded, describing the property and declaring its intention to use all or part of the property for cemetery purposes.” And section 8526 provides: “The declaration may be filed for record in the office of the recorder of the county in which the property is situated, and from the date of filing the declaration is constructive notice of the use for which the property is intended.” Prior to the date of recordation petitions requesting that the area be zoned were received by the Board of Supervisors of [282]Butte County from residents of the surrounding area. On September 8, 1953, the board adopted an interim zoning ordinance effective immediately, as an emergency measure to maintain the status quo, for an area including said land. Following hearings by the planning commission and its recommendations, the board adopted, on December 14, 1953, effective 30 days thereafter, a permanent zoning ordinance. Neither ordinance prohibited cemeteries, but required a use permit for such land use. On September 14, 1953, plaintiff petitioned the commission for a variance. The commission considered the petition as an application for recognition of an existing nonconforming use in the real property. The petition was subsequently denied by the commission and the board upon the ground that an existing nonconforming use for cemetery purposes had not been established by plaintiff. No formal application for a use permit pursuant to said ordinance was filed by plaintiff.