Perepletchikoff v. City of Los Angeles

This is an appeal from a judgment of the Superior Court of Los Angeles County denying a peremptory writ of mandate under section 1094.5 of the Code of Civil Procedure and affirming an order requiring demolition of appellant’s commercial and hotel building located at the corner of East Fifth Street and San Julian Street in Los

It rests not only upon findings of violation of the Los Angeles Municipal Code, but also upon the following: “3. The building by reason of materials of construction, obsolescence, dilapidated condition, deterioration, damage and electric wiring is in such condition as to be a fire cause and is so situated as to endanger life or other buildings or property in the vicinity and provide a ready fuel supply to augment the spread and intensity of fire arising from any cause. 4. The building is maintained in violation of specific requirements of the Los Angeles Building Code and State Health and Safety Code. 5. The building is unfit for human habitation or occupancy within the terms of the State Health and Safety Code.”

The building was erected about 1883 and is a two-story wood structure. The second floor was designed and used as a hotel consisting of 21 rooms; the ground floor is occupied by a restaurant and bar and a secondhand store. On demand of the city’s health department the second story was vacated on February 17, 1958, all entrances thereto were barricaded and it has remained in that condition at all times since said date. The building is situated in Fire District Number 1 and the building code requires that two-hour fire resistant outside walls be installed in new buildings.

The city has power, aside from the municipal code, to abate public nuisances. (Civ. Code, § 3494; Los Angeles City Charter, § 2, subds. (4), (6), 11 (a), (11) (n); 36 Cal. Jur.2d, § 79, p. 564; Nerio v. Maestretti, 154 Cal. 580 [ 98 P. 860 ]; McQueen v. Phelan, 4 Cal.App. 695 , 697 [ 88 P. 1099 ]; Eaton v. Klimm, 217 Cal. 362 , 372 [ 18 P.2d 678 ]; City of Turlock v. Bristow, 103 Cal.App. 750 , 755 [ 284 P. 962 ]; People v. Vasquez, infra, 144 Cal.App.2d 575 , 576-577 [ 301 P.2d 510 ].

Ordinance Number 100,677, amending certain portions of the municipal code, says in section 96.100, under the caption “Declaration, of Purpose”: “It is the purpose of the provisions of this division to provide a just, equitable, and practicable method, to he cumulative with and in addition to any other remedy available at law, whereby buildings or structures which are dilapidated, unsafe, dangerous, insanitary, or are a menace to the life, limb, health, morals, property, safety and general welfare of the people of this City, or which tend to

This evidence and these findings would support an order of demolition of an existing public nuisance without reference to the ordinance. (See Health & Saf. Code, §§ 12510, 15024, 17821; People v. Foerst, 10 Cal.App.2d 274 , 275 [ 51 P.2d 455 ]; People v. United Capital Corp., 26 Cal.App.2d 297 , 299 [ 79 P.2d 186 ]; People v. Vasquez, supra, 144 Cal.App.2d 575 , 576-577.) In the last cited case, at pages 577-578, it is said: “Although evidence was received without objection as to different respects in which the building violated building legislation and ordinances, the decision that the building is a public nuisance is not based on findings that it violates any such legislation or ordinances but on the ground that the defects of the building ‘are dangerous to the public health and safety and are offensive to the senses and constitute an extreme fire hazard to said premises and all the surrounding property. ’ As the undisputed fire and health hazards sufficiently justify the decision, we need not consider whether retroactive application of certain legislation or ordinances to the required changes would be legal or not—also considering the extent of said required changes—or whether the finding that the building is offensive to the senses is sufficiently supported by the evidence.”

However, in the case at bar the evidence and the findings of the board concerning violations of the ordinance are so inter-meshed with facts relating to common law nuisance that we consider appellant’s attack upon the constitutionality of the ordinance as applied to his property to be one requiring consideration. Specifically, the department’s experts testified substantially to the effect that the two-hour fire-resistant outside walls would be essential to proper repair or restoration of the building.

Appellant’s main contention is thus stated in his brief: “Appellant’s remaining contention is that to order

“Alterations or repairs in excess of 10 per cent of the replacement cost of the building or structure may be made provided all of the repairs and the new construction conform to the materials and type of construction required for a new building of like area, height and occupancy in the same location.

“Whenever a nonconforming building or structure has been damaged, or is in need of repairs or alterations required by the Los Angeles Municipal Code in an amount exceeding 50 per cent of the replacement cost, the entire building or structure shall be made to conform to the Code or shall be demolished. ’ ’

It is to be noted, however, that the order for demolition of the building was not predicated solely upon the fact that “it is made of wood, and lacks two-hour fire-resistant walls.” Those things entered into the conclusion that the structure should be torn down but they were only a part of the general conditions which spelled nuisance. The statement of Armistead v. City of Los Angeles, 152 Cal.App.2d 319 , 326 [ 313 P.2d 127 ], that “the fact standing alone that a building within a fire district is of wooden construction will not justify an order of demolition by a city” is therefore inapposite. “Despite their usefulness under some conditions, wooden buildings, and even shingle roofs, can be declared to be nuisances within urban areas.” (City of Nokomis v. Sullivan, 4 Ill.2d 417 [ 153 N.E.2d 48 , 51].)

The record does not show affirmatively that the structure conformed to the building ordinance at the time of its erection in 1883, but the parties and the lower court have assumed that it did and we will proceed upon that basis. Essentially appellant’s contention is that a building which conformed to 1883 standards can be tested by those criteria in 1958 and that no repairs can be required under modern ordinance stand

In Queenside Hills Realty Co. v. Saxl, 328 U.S. 80 , 83 [ 66 S.Ct. 850 , 90 L.Ed. 1096 ], the court said: “ [I]n no case does the owner of property acquire immunity against exercise of the police power because he constructed it in full compliance with the existing laws.” This principle was announced in the process of upholding the multiple dwelling law of New York “providing, inter alia, that lodging houses ‘of non-fireproof construction existing prior to the enactment of this subdivision’ should comply with certain new requirements. Among these was the installation of an automatic wet pipe sprinkler system.” (P. 81.) Plaintiff alleged that his lodging house had a market value of $25,000 and the cost of complying with the new law would be $7,500, and the benefits to be obtained would be negligible, but this argument was rejected.

Stoetzner v. City of Los Angeles, 170 Cal.App.2d 394 [ 338 P.2d 971 ]: “No argument or citation of authorities is needed for the proposition that a building erected for use as, and which is used as a hotel and which has so deteriorated as to be unsafe for human habitation, is a public nuisance or for the proposition that such a nuisance may be ordered abated by the demolition of the offending structure if the nuisance which it creates cannot be otherwise abated.”

Adamec v. Post, 273 N.Y. 250 [ 7 N.E.2d 120 , 109 A.L.R. 1110 ], deals with New York’s multiple dwelling law as amended in 1935, which provides that “buildings used as multiple dwellings, though erected prior to 1901 in accordance with the requirements of the laws of the State which were then in force, must now comply with new requirements and higher standards enacted by the Legislature, for the protection of the safety and health of those who may live in these houses and, indirectly, of the people of the State.” (P. 121 [7 N.E.2d].) In upholding the constitutionality of the law the court said, at page 123 [7 N.E.2d]: “The plaintiff in his complaint set forth sixteen ‘ changes, additions, elimina

City of Seattle v. Hinckley, 40 Wash. 468 [ 82 P. 747 , 748-749, 2 L.R.A. N.S. 398 ]: “And there is no merit in the contention that the respondent had any inherent or vested right because he had complied with the law existing at the time he built. There is no such thing as an inherent or vested right to imperil the health or impair the safety of the community. But, to be protected against such impairment or imperilment, is the universally recognized right of the community in all civilized governments; a protection which the government not only has a right to vouchsafe to the citizens, but which it is its duty to extend in the exercise of its police power. When the subject of legislation is a proper subject of such

California law is in harmony with the foregoing cases. Ex parte Fiske, 72 Cal. 125 [ 13 P. 310 ], upheld a San Francisco ordinance which provided: “ ‘No wooden building within the fire limits shall be altered, changed, or repaired without permission in writing signed by a majority of the firewardens, approved by a majority of the committee on fire department and the mayor, which permit shall fully express the alterations, changes, or repairs allowed, a copy of which shall be filed by the grantee,’ etc.” (P. 126.) At page 127 the court said: “And it has become the settled law that a state,—and under our system a municipality of the state,—in order to protect the property of all its citizens from the ravages of fire, may establish fire limits, and regulate or prevent the use of wooden buildings within such limits; and that, although this may disturb the enjoyment of the rights of an individual, he is, in contemplation of law, compensated by sharing the general benefits derived from it.” Consonant with these principles are Rau v. Redwood City Woman’s Club, 111 Cal.App.2d 546 , 552 [ 245 P.2d 12 ]; Baird v. Bradley, 109 Cal.App.2d 365 , 367-368 [ 240 P.2d 1016 ]; Sullivan v. City of Los Angeles, 116 Cal.App.2d 807 , 810 [ 254 P.2d 590 ]; Ex parte Hadacheek, 165 Cal. 416 , 421 [ 132 P. 584 , L.R.A. 1916B 1248], affirmed in Hadacheek v. Sebastian, 239 U.S. 394 , 410 [ 36 S.Ct. 143 , 60 L.Ed. 348 ]; Finnegan v. Royal Realty Co., 35 Cal.2d 409 , 415 [ 218 P.2d 17 ]; Miller v. Board of Public Works, 195 Cal. 477 , 488 [ 234 P. 381 , 38 A.L.R. 1479 ].

All authorities agree that laws which require that existing buildings be brought up to newly enacted standards must be reasonable in their impact upon a given property. (See Adamec v. Post, supra, 7 N.E.2d 120 , 122, and anno, in 109 A.L.R. 1117 .) Appellant argues that this standard

Under its provisions small items of repair may be made of the same materials as the existing structure; those which cost more than 10 per cent of the replacement cost of the building must conform to the materials and type of construction required for a new building in the area. When repairs have been neglected to the extent that the nonconforming building needs repairs or alterations costing more than 50 per cent of the replacement cost the entire building must be made to conform to the code or be demolished.

Cases above cited establish the propriety of requiring repairs of a preordinance structure to conform to the new standard: That is but a reasonable exercise of the police power. The provision requiring the entire building to be made to conform or be demolished when its deterioration exceeds 50 per cent of the replacement cost, has been upheld as a reasonable exercise of the police power in cases where such a provision has been challenged. See Davison v. City of Walla Walla, 52 Wash. 453 [ 100 P. 981 , 982, 132 Am.St.Rep. 983 , 21 L.R.A. N.S. 454 ]; De Von v. Town of Oroville, 120 Wash. 317 [ 207 P. 231 , 233]; Behrend v. Town of Pe Ell, 136 Wash. 364 [ 240 P. 12 , 14]; Myers v. State, 4 N.J.Misc. 251 [ 132 A. 335 ]; Zalk & Josephs Realty Co. v. Stuyvesant Ins. Co., 191 Minn. 60 [ 253 N.W. 8 , 11]; Bettey v. City of Sidney, 79 Mont. 314 [ 257 P. 1007 , 1009-1010, 56 A.L.R. 872 ]; Citizens Ins. Co. v. Barnes, 98 Fla. 933 [ 124 So. 722 , 723]; Soderfelt v. City of Drayton, 79 N.D. 742 [ 59 N.W.2d 502 , 508]; Russell v. City of Fargo, 28 N.D. 300 [ 148 N.W. 610 , 611, 615].

The Soderfelt ease relies upon Russell v. City of Fargo, wherein it is said at page 615 [148 N.W.] : “The constitutionality of this 50 per cent test ordinance is questioned, but we are satisfied that, for the purpose for which it was intended, it is a valid enactment. The authorities indicate that there must be some method of determining whether changes made in an old structure are sufficient to' constitute a rebuilding or the erection of a new structure, and such provisions are based on the supposition that there is a point somewhere between a perfect or safe building and one which cannot be made safe as to fire, etc., without complete demolition, and a rebuilding. Both the Legislature and the city council have fixed that point at 50 per cent deterioration above the foundation, evidently

The generality of this language is qualified by the following, also found on page 615 [148 N.W.] : “When the law gives city officials the power to remove a building erected within the fire limits in violation of the statute or ordinance, the power to compel the removal of the building grows solely from the fact that its erection was in violation of the ordinance, and not because it is a nuisance, and the power to abate nuisances does not warrant destruction of valuable property, which was lawfully erected, or anything which was erected by lawful authority, and the power to do so, when given by the Legislature is held to be inoperative and void, unless the thing is in fact a nuisance, or was created or erected after the passage of the ordinance, and in defiance of it. This is the distinction between the rights of the city regarding buildings erected before the fire limits were established and those subsequently built.” (Emphasis added.) (To same effect, see Bettey v. City of Sidney (Mont.), supra, 257 P. 1007 , 1009-1010; Hill Military Academy v. City of Portland, 152 Ore. 272 [ 53 P.2d 55 , 60]; 62 C.J.S. § 225(b), p. 412.) This appears to be a valid distinction, one applicable to the ordinance now under consideration. Although the code declares in sections 91.0101(b) and 91.4901(a) that its requirements apply to existing buildings as well as those subsequently erected, the reasoning of the Russell case would indicate that application of the 50 per cent provision must be confined to buildings constructed after enactment of the ordinance; that, for constitutional reasons, demolition of a then existing building can be required only when it has reached the status of a nuisance in fact. That seems to be a sound conclusion, but the issue need not be determined in this case for it clearly appears that the instant hotel building is a nuisance in fact and hence it is immaterial whether the 50 per cent provision of the ordinance declares it to be so, or not.

Moreover, appellant is in no position to challenge this 50 per cent provision for he has neglected his building until it

The trial judge found upon this and other substantial evidence that appellant’s building “is a public nuisance, is unsafe, substandard, nonconforming, a fire hazard, and a menace to life, limb, property and the safety and welfare of the com

The findings of the board and of the superior court are undoubtedly supported by the evidence. (See Endo v. State Board of Equalization, 143 Cal.App.2d 395 , 399 [ 300 P.2d 366 ].) The ordinance as applied to appellant’s property is not invalid.

The judgment is affirmed.

Fox, P. J., and Herndon, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied December 16, 1959.