SKALKO v. CITY OF SUNNYVALE

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District Court of Appeal, First District, Division 2, California.

SKALKO v. CITY OF SUNNYVALE.*

Civ. 10960

Decided: May 25, 1939

Joseph F. Di Maria, of San Jose, for appellant. N.E. Wretman, of San Jose, for respondent.

Plaintiff sued the City of Sunnyvale to have it adjudged that the municipal zoning ordinance was void, and to restrain the municipal authorities from enforcing the ordinance in so far as it restricted plaintiff in his use of his property which was zoned as “residential”.

The ordinance was enacted in 1926. It divided the city into three zones—commercial, industrial, and residential. Of a total area of over nine hundred acres approximately forty acres were placed in the commercial zone, approximately one hundred and forty acres in the industrial zone, and seven hundred and twenty-six in the residential zone. The city is primarily industrial and residential, many of the latter holdings being devoted to fruit raising and agriculture generally. By section 4 of the ordinance it was provided that the residential zone might be used for “dwellings, rooming and boarding houses, auto camps, churches, schools, club houses, recreation, private garages and other customary accessory outbuildings, green houses, nurseries, and all other forms of agriculture except stock raising, except as hereinafter provided”. The area set aside for commercial purposes was shown to be sufficient to accommodate a population of twenty-six thousand, whereas the population of the city was less than four thousand at the time of trial. Upon all the evidence the trial court found that the classification of forty acres as commercial was ample and reasonable, and that the property of plaintiff was located in an agricultural area, “sparsely settled, dwellings of rather low value, and said area is properly designated and included in the residential area by said zoning ordinance”.

In the light of these facts the case presents no legal difficulties. Appellant argues that he should be permitted to use his property for commercial purposes other than those which the ordinance permits in the residential zone. The respondent argues that this is a legislative question with which the courts may not interfere unless the legislative determination is shown to be arbitrary, discriminatory or unreasonable. Such is the settled rule in this state in reference to these zoning ordinances, and, it should be noted, the appellant does not attack the ordinance upon any of these grounds, but rests his case solely upon the contention that he might devote his property to some commercial uses without affecting the health, safety, morals or welfare of the community. This is not the measure by which the courts can judge the validity of such ordinances. The burden is on the appellant to prove its invalidity, not merely to cast a doubt on it or to show that some other classification might have been more reasonable or satisfactory.

The applicable principles of law involved are found in the two following cases from which we quote. “Where the interest of the individual conflicts with the interest of society, such individual interest is subordinated to the general welfare. If in the prosecution of governmental functions it becomes necessary to take private property, compensation must be made. But incidental damages to property resulting from governmental activities, or laws passed in the promotion of the public welfare, are not considered a taking of the property for which compensation must be made.” Miller v. Board of Public Works, 195 Cal. 477, 488, 234 P. 381, 385, 38 A.L.R. 1479. “Of course, zoning ordinances, or ordinances excluding any commercial use, must be reasonable, and the use excluded must bear some reasonable relation to the public interest. But, as indicated from the above quotations, where reasonable minds may differ as to the propriety of the classification, the legislative determination is conclusive. The principle is quite clearly stated in Marblehead Land Co. v. City of Los Angeles, [9 Cir.], 47 F.2d 528, 532, as follows: ‘The legislative body intrusted with the police power has a wide discretion which cannot be interfered with by the courts. Their laws or ordinances enacted in pursuance of the police power are invested with a strong presumption of validity. If the question as to whether or not the legislation is unreasonable or arbitrary or an unequal exercise of power is fairly debatable, the legislation must be upheld as valid.’ ” Sunny Slope Water Co. v. City of Pasadena, 1 Cal.2d 87, 94, 33 P.2d 672, 675.

The judgment is affirmed.

NOURSE, Presiding Justice.

We concur: STURTEVANT, J.; SPENCE, J.