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District Court of Appeal, Third District, California.


Civ. 6395

Decided: April 06, 1940

J.H. O'Connor, Co. Counsel, and Beach Vasey, Deputy Co. Counsel, both of Los Angeles, for appellants. Sparling & Teel, of Los Angeles, for respondent.

This action was brought to secure a declaratory judgment in respect to the rights of plaintiff under a zoning ordinance of Los Angeles County, and to enjoin defendants from preventing plaintiff from using his property in connection with his business as a plumber. The trial court found for plaintiff, and granted the injunction. The appeal is from the judgment.

On March 29, 1930, the board of Supervisors of Los Angeles county adopted a zoning ordinance covering an area of some four square miles, and designated as “South Santa Anita District”. The district contains 2496 acres. It is surveyed into lots and streets. Within its limits is a business section known as “Temple City”. The area is sparsely settled. A considerable number of occupants were then engaged in devoting their real property to uses which did not conform to the uses prescribed and permitted by the ordinance. These are known as “non-conforming uses”. Several months after the ordinance took effect, plaintiff purchased a home within the district, and near Temple City. He was a plumber, and the trial court found that: “It is not true that the residence premises of this plaintiff, or any building structure or improvement thereon is not used for any purpose other than a single family residence, but upon the contrary the court finds that the plaintiff is conducting a plumbing business thereon.” This finding is not attacked or questioned, and we may therefore start with the premise that plaintiff was using his premises for business purposes, and in contravention of the terms of the ordinance.

The particular portion of the ordinance with which we are concerned is as follows: “No building, structure, improvement or premises shall be used, and no building, structure or improvement shall be erected, constructed, established, altered or enlarged in Zone R–1 which is designated, arranged or intended to be occupied or used for any purpose other than a single family residence, together with the outbuildings necessary to use such located on the same lot or parcel of land, including a private garage with a capacity not to exceed three automobiles.”

The premises of plaintiff are located in Zone R–1. It therefore appears that plaintiff was using his property in violation of the section of the ordinance quoted. The trial court, however, further found “that said ordinance is unlawful, void and unconstitutional, and amounts to the taking of the property of this plaintiff without due process of law, and in violation of Articles V and XIV of the [amendments to the] Constitution of the United States, and section 3, Article I, of the Constitution of the State of California”. The facts which the trial court finds as justification for the foregoing conclusion are stated as follows: “That said ordinance is unconstitutional and void as aforesaid for the following reasons among others, to-wit: that Temple City, which notwithstanding its name is in unincorporated territory, was founded with the intention that its inhabitants would use their residence properties for some light commercial purposes which would enable them to make a living; that chicken raising on a commercial scale has been, and is the most extensive of these light, commercial home industries, but throughout the residence district in Temple City there have been and are scattered real estate offices, stone masons' headquarters, cement contractors' offices, and the like; that this was the state of affairs when the zoning ordinance was passed; the court finds that this zoning ordinance is unreasonable because it attempts to make a strictly residential district out of a district where home industries have always been conducted; that said ordinance purports to prevent the living upon and use of said property for any purpose other than a single family residence and to prevent the living upon and the conduct of any business from and upon said premises; that said premises are in a sparsely built-up community without the corporate limits of any municipality and in the unincorporated section of Los Angeles County; that said section is in the center of a poultry, truck gardening and fruit growing community wherein and whereat all residents, without substantial exception, are poor people who at least must of necessity, and do get their living, or a large portion thereof, from the use of the said property otherwise than in a strictly residential capacity; that much of the property in said restricted and zoned district has, for a long time, and prior to the enactment of said ordinance been, and now is, used for residential and business purposes; that said property is closely surrounded by numerous properties so used for residential and business purposes, and is near and in close proximity to railroads and railroad yards and other business areas; that plaintiff has long used his property as hereinbefore alleged; that the use of said property by plaintiff, or by the numerous others using their properties for residential and business purposes, has, in no wise, reasonably or otherwise, impaired or injuriously affected the public health, safety, morals or general welfare of the community of Temple City or any other community or section of Los Angeles County; that the said zoning ordinance is not reasonably, or at all, necessary to said public health, safety, morals and general welfare, and that the enforcement of said ordinance, as valid, will jeopardize and deprive the plaintiff of his rights to the free use and enjoyment of his said property as guaranteed by the Federal and State Constitution.”

It is contended by appellants that the findings do not support the judgment, which is as follows:

“It is therefore hereby ordered, adjudged and decreed that Los Angeles County Ordinance No. 1494 (New Series) as amended by Ordinance No. 1648 (New Series) and by Ordinance No. 1813 (New Series) and/or other acts, ordinances or sections amendatory thereof, is discriminatory, unreasonable, oppressive, arbitrary and confiscatory in nature, and by its terms, and is unconstitutional and void in so far as it attempts to prohibit home industries in an R–1 zone.

“That plaintiff is adjudged the right to use his said property described as: South fifty feet of Lot 110, Tract 6561, as per Book 72, pages 34–35 of Maps, Records of Los Angeles County, California, in accordance with the uses heretofore made of said property by plaintiff, and to continue the conduct of his plumbing business thereat, or any other lawful use and occupation thereof. That defendants, and each thereof, their agents, employees, servants and attorneys, or any thereof, are hereby perpetually restrained and enjoined from attempting to prevent plaintiff from using and occupying his said property as aforesaid, or otherwise, insofar as the provisions of said unconstitutional ordinance or amendments thereto are concerned.”

It is unnecessary to restate the general rules governing the right of a municipality to adopt zoning ordinances similar to the one here involved. The excellent and comprehensive review of all the phases of this question, and the law relating thereto, as found in the cases of Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479, and in Zahn v. Board of Public Works, 195 Cal. 497, 234 P. 388, is decisive of the right and power of the county here to adopt the ordinance in question. The former case lays down the quantum of proof necessary to support a judgment voiding the ordinance. Referring to the exercise of the police power, it is there said [[195 Cal. 477, 234 P. 385, 38 A.L.R. 1479]: “Every intendment is to be indulged [in] by the courts in favor of the validity of its exercise and, unless the measure is clearly oppressive, it will be deemed to be within the purview of that power.” Referring to the right to adopt a plan of zoning which establishes strictly private residential districts, the court there says: “We are of the opinion that it may be done; that the establishment of such districts as a part of a systematic and carefully considered and existing zoning plan is a legitimate exercise of the police power delegated to the municipality.”

The foregoing general principles are not disputed by respondent. As we view his contention, he insists that the territory included in the district was, when zoned, not residential in character, and that the evidence shows the following facts in relation thereto: that the first parties who laid out the town (of Temple City) had in mind farming and chicken raising, and that some parcels of property are used for chicken raising and light commercial industries. This refers to the time when the ordinance became effective. The record shows that there is evidentiary support for a finding embracing such facts. As to the number of such nonconforming uses, it appears that there were twenty or more of them when the ordinance became effective. They were scattered over the entire area, though more of them were in the immediate vicinity of Temple City—particularly those connected with some business enterprise. It thus appears that the facts found by the trial court are supported by the evidence. As to the finding that the use made by plaintiff of his property, and the uses made by other occupants, do not impair or injuriously affect the public welfare, this was a question to be decided by the board of supervisors or their authorized agents, and the courts are not permitted to substitute their judgment in such matters for that of the municipal authorities. See quotation from Miller v. Board of Public Works, supra, for a full discussion of the law. We cannot say, nor do we think that the trial court could find, under the evidence, that the zoning of plaintiff's property as residential had no real or substantial relation to the general welfare. If the governing body did not abuse its discretion in zoning the district, the courts have no right or power to interfere. We hold that there was no abuse of discretion shown here. This “finding”, therefore, may be disregarded. We do not agree with the conclusions of law embodied by the findings, and also appearing under the heading as “Conclusions of Law”, which are that the ordinance “is discriminatory, unreasonable, oppressive, arbitrary and confiscatory in nature, so far as it attempts to prohibit home industries in the R–1 Zone, and by its terms is unconstitutional and void”.

As we have stated, the right and power of the supervisors to enact the ordinance is beyond question or doubt. As we understand the real position taken by respondent, both from his oral argument and his brief, it is that the ordinance is not unconstitutional per se, but that it is only void as applied in respect to the area involved.

Did the county have the right to subject the area in question to the provision of the ordinance? Respondent states that the county had no right to zone an area, at least partly agricultural in character, and to place over eighty per cent of that area within the R–1 class, which is residential. He points out that, when the ordinance took effect, there were a large number of nonconforming uses existing in the district. These uses he designates as “home industries”—a term also employed by the trial court in the findings, but never defined. It presumably would include any business or occupation carried on by a property owner for the purpose of increasing his income. The evidence as to the number of these uses is a matter upon which the parties do not agree. According to a computation made by appellants, the record shows but sixteen. The court, during the trial, viewed the district and the premises of respondent. It is contended by respondent that what the trial judge saw is evidence in the case, and that there might have been more than the actual record indicates. We do not believe, however, that the exact number of such uses would be a material factor in the case. The first step toward the exercise of the zoning power is the passage of the necessary legislation. The next step is the selection of the district or territory which will be subjected to the operation of the ordinance. In this case the chief objection is to the establishment of a residential zone. Referring to that situation, our Supreme Court has said, in Miller v. Board of Public Works, 195 Cal. 477–493, 234 P. 381, 386, 38 A.L.R. 1479: “In addition to all that has been said in support of the constitutionality of residential zoning as part of a comprehensive plan, we think it may be safely and sensibly said that justification for residential zoning may, in the last analysis, be rested upon the protection of the civic and social values of the American home. The establishment of such districts is for the general welfare because it tends to promote and perpetuate the American home. It is axiomatic that the welfare, and indeed the very existence, of a nation depends upon the character and caliber of its citizenry. The character and quality of manhood and womanhood are in a large measure the result of home environment. The home and its intrinsic influences are the very foundation of good citizenship, and any factor contributing to the establishment of homes and the fostering of home life doubtless tends to the enhancement, not only of community life, but of the life of the nation as a whole.”

In the same case it is also said: “It is scarcely necessary to reiterate here the well-recognized principle that courts are loath to substitute their judgment as to the necessity for a particular enactment for the legislative judgment as to the need of such enactment with reference to the exercise of the police power. A large discretion is vested in the legislative branch of the government with reference to the exercise of the police power. Mehlos v. Milwaukee, 156 Wis. 591, 146 N.W. 882, 51 L.R.A.,N.S., 1009, Ann.Cas.1915C, 1102; Carter v. Harper, supra [182 Wis. 148, 196 N.W. 451]. Every intendment is to be indulged by the courts in favor of the validity of its exercise and, unless the measure is clearly oppressive, it will be deemed to be within the purview of that power. It is only when it is palpable that the measure in controversy has no real or substantial relation to the public health, safety, morals, or general welfare that it will be nullified by the courts. The courts may differ with the Legislature as to the wisdom and propriety of a particular enactment as a means of accomplishing a particular end, but as long as there are considerations of public health, safety, morals, or general welfare which the legislative body may have had in mind, which could have justified the regulation, it must be assumed by the court that the legislative body had those considerations in mind and that those considerations did justify the regulation. State ex rel. Civello v. City of New Orleans, supra [154 La. 271, 97 So. 440, 33 A.L.R. 260]. In Ex parte Hadacheck, supra [165 Cal. 416, 132 P. 584, L.R.A.1916B, 1248], the court held in effect that, when the necessity or propriety of an enactment was a question upon which reasonable minds might differ, the propriety and necessity of such enactment was a matter of legislative determination.”

It must be presumed that the board of supervisors were aware that many of the occupants of the district were putting their property to uses which did not conform to the legislation. The finding of the trial court quoted above is nothing more than that. Under such conditions the supervisors, in the exercise of a sound discretion given them by law, nevertheless had the right to zone the property in the manner stated. We cannot say that the existence of such uses absolutely precluded the exercise of the police power. This power is extremely broad. Zoning “may take into consideration factors which bear no relation to the public health, safety, or morals, but which come within the meaning of the broader term ‘general welfare.’ ” Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14, 20. We therefore conclude that the findings quoted do not support the judgment, and under the record here, they should be omitted entirely. They do not lay the foundation for the conclusion that the ordinance is unconstitutional and void.

It has often been said that zoning looks to the future, not the past. Jones and Biscay cases, infra. This court can take judicial notice of the extremely rapid growth in the population of Los Angeles county during the past few years. An orchard or grain field of today is a thriving, built-up residential section tomorrow. To hold that because some occupations are carried on in a proposed district which are nonconforming in character to zoning regulations sought to be imposed, an insurmountable barrier to zoning would arise, is to adhere strictly to the past and ignore the future, and is contrary to the spirit and intent of zoning legislation, as it has been unfolded and developed in the past few years.

Respondent refers to the great injustice which might be done to occupants of little means who were, when the ordinance took effect, engaged in nonconforming uses as a means of sustaining themselves . It is the rule in this state that zoning regulations cannot be made retroactive, and that nonconforming uses cannot be removed and existing conditions cannot be affected. Any attempt to enforce a zoning ordinance in such manner would be unconstitutional. Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14; Biscay v. City of Burlingame, 127 Cal.App. 213, 15 P.2d 784. Therefore the suggested injustice to those living through “home industries” at the time the ordinance took effect, is not a factor in the case. As to the occupants who purchased property subsequent to the effective date of the ordinance (plaintiff is one of them), they moved into the area with due notice that the law would not permit them to indulge in nonconforming uses, and they cannot complain of inequity or injustice.

We see no necessity of ordering a retrial of the issues. Findings, one to nine inclusive, should be retained. There should also be a finding to the effect that the ordinance is valid and constitutional, both generally and in respect to its application to plaintiff. All other findings should be eliminated. Judgment should be entered in conformity with this opinion.

The judgment is reversed, with directions to the trial court to enter findings and judgment in accordance with this opinion.

Mr. Justice TUTTLE delivered the opinion of the court.

We concur: PULLEN. P.J.; THOMPSON, J.

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