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District Court of Appeal, Fourth District, California.


Civ. 3293.

Decided: October 30, 1945

H. R. Griffin, City Attorney, and Martin J. Coughlin, both of San Bernardino, for appellants. E. John Eriksson and Homer M. Bail, both of San Bernardino, for respondent.

This action was brought to enjoin the City of San Bernardino and the individual defendants who composed its common council from enforcing the provisions of its zoning ordinance as it affected certain property owned by plaintiff. After taking considerable evidence and viewing the premises the trial court found that the provisions of the ordinance as it affected plaintiff's property involved here ‘is not reasonably related to the public health, safety, morals or general welfare, and constitutes an unreasonable, oppressive and unwarranted invasion of plaintiff's property rights * * *.’ The injunction was ordered issued and this appeal followed.

‘E’ Street is one of the main traveled streets of the city of San Bernardino. It runs north and south and connects with the highway leading into and across California from the east. It carries heavy traffic of all kinds. Marshall Boulevard is a main east and west artery running through the northerly portion of the city of San Bernardino and carries considerable local traffic. It intersects ‘E’ Street at right angles. Acacia Street is the first north and south street west of ‘E’ Street. The distance between the west line of ‘E’ Street and the east line of Acacia Street is approximately 394 feet.

In the subdivision of the block between ‘E’ and Acacia Streets north of Marshall Boulevard the lots were laid out 50 feet wide and approximately 394 feet long with the longest dimension running east and west from Acacia Street to ‘E’ Street. Lot 72 of the tract borders Marshall Boulevard on the north. Lots 71, 70 and 69 lie consecutively north of Lot 72. Plaintiff owned the easterly portions of lots 72 and 71 and all of lots 70 and 69. He also owned other property bordering the intersection. He had constructed a two-story business building on the northwest corner of the intersection with stores on the ground or first floor and apartments above. He had also erected multiple dwellings and garages on the portions of lots 70 and 69 west of this building, extending west to a point 112 feet east of the east line of Acacia Street. These buildings were well constructed and conformed in all respects to the zoning and building ordinances of the city of San Bernardino. All of the lots lying south, west and north of plaintiff's property, except the property along ‘E’ Street which was zoned for business, were occupied by single family dwellings, except that the evidence may indicate that two single family units were constructed on one lot on the west side of Acacia Street a short distance north of Marshall Boulevard.

The first zoning ordinance of the city of San Bernardino was passed in 1925. It was superseded by another zoning ordinance in 1930. This was also superseded by the zoning ordinance in question here which was passed on May 4, 1942. These ordinances followed the same general plan, the southerly line of the northerly single family dwelling zone being placed progressively north to meet the changed conditions brought about by the rapid growth of the city. The present south line of this zone is 150 feet north of the north line of 23d Street which is about ten blocks south of Marshall Boulevard and the property in question here. Small business zones were provided for in the single family residence zones to provide neighborhood trading centers for the convenience of the inhabitants. Multiple dwellings could be erected in these small business zones. The property lying on the four corners of ‘E’ Street and Marshall Boulevard composed one of these small business zones. This small business zone is entirely surrounded by property zoned for single family dwellings.

In June 1940, plaintiff filed an application requesting that all of Lots 70 and 69 be included in the neighborhood business zone. This application was denied as to the west 112 feet of these lots abutting on Acacia Street but was granted as to the balance of the lots. On March 11, 1942, he filed an application to change the west 112 feet of the lots from the single family dwelling zone to the multiple dwelling zone. This application was denied. In April 1942, he applied for a building permit for multiple dwellings on the whole of the two lots which was denied because the west 112 feet was in the single family dwelling zone. In May and in June 1942, he applied for and obtained two permits to erect a two-story and garage and single family dwelling on the west 112 feet of each of Lots 70 and 69. His plans submitted with the applications showed single family dwellings. Instead of following these plans he erected two multiple family units with one apartment and garages on the first floors and two apartments on the second floors. This was in violation of his building permits and the zoning ordinance of the city. The facts detailed show clearly that these violations were deliberate on the part of plaintiff. There is no contention that the buildings are not modern and well constructed.

He again filed an application to change the zone on the west 112 feet of the two lots to permit the use of the multiple dwellings he had erected. This application was denied in May 1943, was reconsidered and was again denied in August 1943. This litigation followed with the results already indicated.

No question is raised as to the due passage of the San Bernardino zoning ordinance. The right of a municipality to zone territory within its limits thus providing for various occupancies in the various zones is admitted and cannot be questioned, provided the various zones as established are reasonably related to the public health, safety, morals, or general welfare, and none of the zones created constitute an unreasonable, oppressive or unwarranted invasion of private property rights. The creation of small business zones entirely within residential sections has been upheld as a practice in almost universal operation and one that is within the reasonable exercise of the police power of a city. Zahn v. Board of Public Works, 195 Cal. 497, 234 P. 388; Feraut v. City of Sacramento, 204 Cal. 687, 269 P. 537; Harris v. City of Piedmont, 5 Cal.App.2d 146, 42 P.2d 356.

It is also established that drawing the boundary lines of the zones must of necessity be more or less arbitrary for in the nature of things there cannot be much difference between property on one side of an imaginary line and that on the other. Brown v. City of Los Angeles, 183 Cal. 783, 192 P. 716; Zahn v. Board of Public Works, supra. Increasing or diminishing the value of property by restricting its use under a valid zoning ordinance does not render the ordinance void as it is one of the incidents which may follow the valid exercise of the police power which permits property to be taken or damaged for public use under that power, when properly exercised, without compensation to the owner, Patrick v. Riley, 209 Cal. 350, 287 P. 455; Graham v. Kingwell, 218 Cal. 658, 24 P.2d 488; Coelho v. Truckell, 9 Cal.App.2d 47, 48 P.2d 697. This is one of the penalties, or benefits, depending on the point of view, incident to the privilege of living under the conditions of modern society where some of the personal and property rights that may be enjoyed by an isolated person must be surrendered to and circumscribed by the welfare of the larger group.

It is also settled that zoning areas for single family dwellings is a valid exercise of the police power by a city and tends to promote the general welfare because it tends to promote and perpetuate the American home and thus lay a proper foundation for the sound character and caliber of its citizenry. The reasons for this rule and the advantages to society of single family residence districts over those containing apartments, flats or hotels is discussed at length in Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479, and need not be repeated here.

These authorities bring us to the conclusion that the common council of San Bernardino is vested with the legal constitutional authority to zone areas of the city and limit the use of property in some of those areas to single family dwellings and other areas to business establishments or multiple dwellings.

While the foregoing is true as to the law governing a general zoning plan which was followed in San Bernardino, it is also true that the actual zoning as its affects individual properties must not be an unreasonable, oppressive or unwarranted invasion of an owner's property rights. To protect the rights of an individual property owner against such invasion the courts have not hesitated to examine the effect of a zoning ordinance, legally adopted and proper in its general plan, as affecting individual properties and if that effect on such properties has been found to be clearly unreasonable, oppressive or unwarranted, have held the ordinance void as to them.

Instances where zoning ordinances were held void as to certain property are cited and relied upon by plaintiff and should be briefly reviewed.

Reynolds v. Barrett, 12 Cal.2d 244, 83 P.2d 29, was an action in which a single lot entirely surrounded by business structures was zoned for residential purposes. The court held the ordinance void as to that lot.

The zoning ordinance involved in Skalko v. Sunnyvale, 14 Cal.2d 213, 93 P.2d 93, 94, limiting the land of plaintiff to use for residential purposes was held void as affecting that property because ‘considering all the facts shown by the record, it clearly appears beyond question that the land owned by the appellant is entirely unsuited for residential purposes.’ A similar conclusion was stated in Hurst v. Burlingame, 207 Cal. 134, 277 P. 308, after the court had held the zoning ordinance void because of the failure to follow the provisions of the zoning act (Stats.1917, P. 1419) in adopting it. Also it appeared that the plaintiff's property was entirely surrounded by property occupied by commercial enterprises which would be an additional reason for holding the ordinance void as to plaintiff's property had it been legally passed.

Hagenburger v. Los Angeles, 51 Cal.App.2d 161, 124 P.2d 345, is also relied upon by plaintiff. There the plaintiffs were engaged in the business of raising nursery plants on leased property zoned for single family dwellings, which property was practically surrounded by business properties. The court repeated the rule that a small property surrounded by property devoted to commercial or business enterprises should not be zoned for residential purposes. The real ground of the decision was found in the language of the zoning ordinance which permitted farming in the zone in question. After a review of many authorities the court held that raising nursery plants was farming as the term was used in the ordinance and that the use made of the property by plaintiff was not prohibited by the ordinance.

In re White, 195 Cal. 516, 234 P. 396, 397, is also cited by plaintiff. That case involved the validity of a zoning ordinance of the city of Atherton as it affected the property of petitioner. The city had 2500 acres within its limits. The ordinance divided the city into two zones, one of these less than 1.1 acres, was an unrestricted zone in which business could be conducted, the other a residential zone in which no businesses could be conducted. The unrestricted area was at the time of the enactment of the ordinance as well as at the time of the trial, ‘fully occupied to the exclusion of other business, by a gasoline service station and a restaurant.’ Petitioner built a small real estate office on his property in the residential district and proceeded to conduct business there. He was arrested and convicted of violating the provisions of the zoning ordinance and was ordered discharged by the Supreme Court because the purpose and effect of the ordinance was not to promote the health, safety, morals or general welfare of the public but instead to grant ‘a monopoly to the business establishments already situate in the 1 1/10110 acres of the ‘unrestricted district’. In other words, under the guise of regulating business and segregating it to a particular district, the ordinance in fact prohibits all business save and except that of the favored two already established.'

It should be unnecessary to review other cases of similar import as the foregoing illustrate the general circumstances under which zoning ordinances have been held void as to certain properties. They fall into three general classes: (1) Where a small parcel of property is zoned for residential purposes when it is entirely surrounded by business or commercial enterprises; (2) where the property zoned for residential use is entirely unsuited for residential purposes; (3) where the purpose of the ordinance is not to promote and protect the public health, safety, morals or general welfare but to create a monopoly of use of property within a certain zone and exclude other enterprises from the city.

It is clear from the facts of this case already recited that none of the foregoing reasons for holding a zoning ordinance void as to individual property is applicable here. Plaintiff's properties, the west 112 feet of Lots 70 and 69, are bounded on three sides by property zoned for use by single family dwellings. His property is not a small island in a district devoted to business or commercial uses. This property is not entirely unsuited for residential use any more than the adjacent properties which are now being used as sites for single family dwellings. There is no suggestion that the ordinance creates a monopoly of use in the district as many other sites for multiple dwellings are available in the neighborhood and elsewhere in the city. Plaintiff owned vacant property within the small business district centering at the intersection of ‘E’ Street and Marshall Boulevard upon which he could have erected multiple dwellings.

Plaintiff's argument that the existence of heavily traveled streets and boulevards in the neighborhood of its property should bear on its use for multiple rather than single dwellings cannot be given any force, it being contrary to the holdings of the courts. Strong v. Hancock, 201 Cal. 530, 258 P. 60; O'Rourke v. Teeters, 63 Cal.App.2d 349, 146 P.2d 983.

Plaintiff argues that there are other nonconforming uses in the neighborhood mainly in the fact that dwellings have been built on lots containing less than 5000 square feet, which is the minimum size specified for single family dwellings by the ordinance of San Bernardino. We cannot see how this argument can assist plaintiff, as violation of one law by another cannot excuse violation of a different law by him and ‘no vested right to violate an ordinance may be acquired by continued violations.’ Acker v. Baldwin, 18 Cal.2d 341, 115 P.2d 455, 458; Rehfeld v. City and County of San Francisco, 218 Cal. 83, 21 P.2d 419.

The trial court found, and plaintiff argues, that it is impracticable to use plaintiff's buildings as single family dwellings and that it would be unreasonable for the use of the buildings to be limited to such a purpose.

It is obvious from what we have already said that plaintiff knew that the ordinance of San Bernardino did not permit him to build multiple dwellings on the properties involved. His applications for building permits showed that he planned to erect single family dwellings. During construction he changed his plans, took a chance and finished the multiple dwellings. His deliberate violation of the law conferred no new rights on him nor can it arouse any sympathy in his favor. Magruder v. City of Redwood, 203 Cal. 665, 265 P. 806. In Maguire v. Reardon, 41 Cal.App. 596, 183 P. 303, 305, it was said. ‘The ordinance does not deprive appellants of any vested rights without due process of law. ‘In removing a building erected in violation of law * * * no private right is invaded, because none could grow out of the illegal act.’ Baumgartner v. Hasty, supra [100 Ind. 575, 50 Am.Rep. 830]; [City of] Brooklyn v. Furey [9 Misc. 193], 30 N.Y.S. 349.'

The trial judge took judicial notice of the housing shortage in San Bernardino and found on that question. We are fully aware of the housing shortage that exists not only in San Bernardino but in many other places in California. The fact of a housing shortage cannot excuse plaintiff's deliberate violation of the law nor can it furnish a valid reason for holding the zoning ordinance void in its application to plaintiff's properties. Nothing in the City of San Diego v. Van Winkle, 69 Cal.App.2d 237, 158 P.2d 774, is to the contrary. There the city brought an action to enjoin the occupancy of a multiple dwelling erected in a single family zone. The trial court granted the injunction but suspended its operation during the existence of the war emergency and the housing shortage there. This was held to be a proper exercise of discretion under the facts disclosed and the law applicable to those facts.

The trial court viewed the premises before deciding the case. Plaintiff urges that what was seen was evidence not in the record which must be presumed to support the findings and judgment. This is in general a correct statement of the law but it cannot result in an affirmance of the judgment in this case. While what the court saw was evidence, that evidence, like all the other evidence in the case, must be weighed, considered, construed and applied under the well-settled principles of law governing us here.

Fixing boundaries of a zone is a legislative act committed to the sound discretion of the legislative body. Sunny Slope Water Co. v. Pasadena, 1 Cal.2d 87, 33 P.2d 672. The courts are not legislative bodies and we cannot substitute what we might think should have been done for what was done within the law by the legislative body. As said in Acker v. Baldwin, supra: ‘It is now settled beyond question that although a court may differ from the determination of the legislative body, unless a zoning measure is clearly oppressive, it will be deemed to be within the purview of the police power. There will always be difference of opinion as to the means of accomplishing a particular end, but if there is a reasonable basis for the belief that the establishment of a strictly residential district has substantial relation to the public health, safety, morals or general welfare, a zoning ordinance to accomplish that purpose will be upheld.’ See, also, Magruder v. City of Redwood, supra; Ex parte Quong Wo, 161 Cal. 220, 118 P. 714; Ex parte Hadacheck, 165 Cal. 416, 132 P. 584, L.R.A.1916B, 1248.

Quoting again from Acker v. Baldwin, supra: ‘Also, the court's finding that the use of the property by the respondent and others for business purposes, has, in nowise, reasonably or otherwise impaired or injuriously affected the public health, safety, morals or general welfare will not sustain the judgment. Courts do not require that the proscribed use of each individual lot in an area zoned will have this effect if the zoning plan, as a whole, promotes these objectives of the police power. Rehfeld v. City and County of San Francisco, supra, [218 Cal. 83, 21 P.2d 419.]’

There is a strong presumption in favor of the validity of a legislative act. Sunny Slope Water Co. v. Pasadena, supra; Reynolds v. Barrett, supra; Skalko v. Sunnyvale, supra. In Reynolds v. Barrett, supra, the court said [12 Cal.2d 244, 83 P.2d 32]: ‘The power to declare zoning ordinances unconstitutional only should be exercised where no substantial reason exists to support the determination of the city council. If the reasonableness of the ordinance is reasonably debatable the ordinance must be upheld. Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074. The line between business and residential property must be drawn somewhere. The mere fact that business property is located across the street or even adjoining the residential property involved does not determine that the ordinance is invalid or discriminatory. Smith v. Collison, 119 Cal.App. 180, 6 P.2d 277; Feraut v. Sacramento, 204 Cal. 687, 269 P. 537. The fact that nearby business property has the same characteristics as the parcel involved in the proceeding does not justify the court in substituting its judgment for the legislative judgment.’

After a study of the record, and under the cited authorities, we are forced to the conclusion that the plaintiff has failed to support his case and that the ordinance in question is a valid exercise of the police power in so far as it affects the property in question here. The ordinance treats that property equally with, and places it in the same zone as the property adjoining it on three sides. Because business and multiple dwellings are permitted on the fourth side is no reason for a court to hold the ordinance void as affecting the property in question here.

The judgment is reversed.

MARKS, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.