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District Court of Appeal, Second District, Division 1, California.


Civ. 16856.

Decided: July 22, 1949

E. H. Delorey and Harold L. Newman, Los Angeles, for appellant. Ray L. Chesebro, City Atty., Bourke Jones and Roger Arnebergh, Ass't City Attys., Lester L. Lev, Deputy City Atty., Los Angeles, for respondents. O'Melveny & Myers, Louis W. Myers, W. B. Carman, Jr., Sidney H. Wall, and William W. Alsup, Los Angeles, for California Land Title Ass'n as amicus curiae on behalf of appellant.

On December 12, 1946, plaintiff, who had purchased the real property involved herein within two years prior thereto, instituted the present action for declaratory relief for the purpose of determining the validity of a Los Angeles City Odinance which, in the language of appellant's brief, ‘attempts to limit the sale or leasing for 99 years of residential lots to areas of not less than five thousand square feet and not less than fifty foot frontage’. The action also sought an injunction.

The property in question, located in Zone C–2, at the time of plaintiff's purchase was improved with nine bungalow units which had been erected prior to September 28, 1936. The bungalows were occupied for dwelling purposes by separate families. Quoting from appellant's brief, ‘within the year prior to the commencement of plaintiff's action herein, plaintiff sold or leased for 99 years eight units of said property to different individuals, the land upon which the same was situated, and an area of contiguous land surrounding said bungalows, together with an easement of ingress and egress to and from Beverly Boulevard (Agreed Statement, p. 5); that each unit so sold was of less than fifty feet in width and less than five thousand square feet in area.’ The City ‘threatened plaintiff with arrest and prosecution for such sales or leasing claiming that they were in violation of Section 12.21–C of the Municipal Code (Ordinance No. 77,000 adopted September 28, 1936, as amended by Ordinance No. 90,500, adopted March 7, 1946)’.

The trial court, giving judgment for the defendants, held that the ordinance in question ‘is constitutional, valid and enforceable’; that the transactions made by plaintiff were in violation of the ordinance and hence ‘null and void’. Plaintiff appeals from that judgment.

The appellant contends that the City had no authority to prohibit a sale or leasing of a lot less than 5,000 square feet and having less than a 50 foot frontage; that ‘The attempted exercise of police power is unreasonable and arbitrary’; that the ordinance deprives plaintiff ‘of his property without compensation therefor, the use of his property without due process of law, and denies the plaintiff the protection of the law’. Appellant's brief maintains that ‘Such a prohibition in itself is unreasonable, arbitrary, capricious and unnecessary for the preservation of health, safety, morals or welfare’.

An amicus curiae brief in behalf of appellant's position, has been filed by the California Land Title Association, in which it is insisted that ‘The transfer of land title is a matter of statewide concern, regarding which the City has no power of regulation’; that even if such power of regulation exists, the ordinance ‘would be invalid to the extent that it conflicts with the state law by declaring void a sale which the state law, Subdivision Map Act, Business and Professions Code, sec. 11540, provides shall be voidable only at the option of the purchaser’. This brief also cites several cases holding that ‘A zoning ordinance may be generally valid, but its enforcement with respect to particular property will be restrained by the courts if it is unreasonable, arbitrary and discriminatory in its application thereto’. It is also pointed out that ‘There is no reasonable relation between a reduction in the area of an improved lot, without change in its improvements, its use or its existing yard, areas, and the protection of public health, safety, morals or welfare’.

The respondents' position is that ‘Minimum lot area requirements may be adopted by a city as an incident of its power to enact zoning regulations', and that the ordinance in question ‘is a valid means of assuring the continued maintenance of minimum lot areas'.

The present appeal is upon an agreed statement of facts and no cases have been cited in which the exact question here involved has been decided. Those referred to in the appellant's brief relate merely to general principles, such as the purpose of zoning ordinances, unreasonable exercise of police power, etc. The same is true in respect to respondents' brief. The matter, therefore, in its present aspect, may be said to be one of first impression.

It may be conceded, as said in Miller v. Board of Public Works, 195 Cal. 477, 488, 234 P. 381, 385, 38 A.L.R. 1479, that ‘the regulation of the development of a city, under a comprehensive and carefully considered zoning plan, does tend to promote the general welfare of a community, and * * * when fairly conceived and equably applied, is well within the scope of the police power. The increase of our urban population makes regulation necessary.’ The same opinion also mentions a ‘tendency to a more liberal construction of the police power, as applied in zoning and other regulatory laws'. It is also stated in this and other cases that a municipal legislative body may exercise a reasonable discretion in the enactment of such regulations.

Examination of the various cases on this subject makes it clear that exercise of the so-called ‘police power’ under which zoning regulations are upheld, cannot be made an excuse for unlimited and unreasonable legislation. It is, indeed, only in those cases where a clear and reasonable relation exists between the particular regulation and the public welfare, that such interference with the private rights of individuals can be tolerated. Otherwise, if the term ‘police power’ be interpreted too broadly as a general excuse for the exercise of unlimited power not otherwise possessed, the result is regimentation and dictatorial excess bordering on totalitarianism.

In the regulation here under consideration, the amicus curiae brief properly says that ‘There is no reasonable relation between a reduction of the area of an improved lot, without change in its improvements, its use or its existing yard areas, and the protection of public health, safety, morals or welfare’. This being so the zoning ordinance which attempts to limit the sale or leasing for 99 years of appellant's residential property because each of such bungalow courts, so divided will have less than 5,000 square feet and less than 50 foot frontages, cannot be sustained.

Whatever may be the power to regulate new building, that matter is not here under consideration. The nine bunalow courts appear to have been constructed on appellant's property some 20 years before the adoption of the ordinance in question. The city ordinances do not purport to require the removal of these improvements, nor cessation of the present use thereof. The property will, indeed, remain exactly as it has been in the past,—the only difference is that the various bungalows will be owned by different people. It is significant that no claim has been made to the effect that the property in question constitutes a menace to public health, safety or morals. And, as mentioned in the amicus curiae brief, ‘the city evidently does not consider such bungalow courts a nuisance, for its ordinances permit the present construction of just such improvements on 5,000 square foot lots held under single ownership in the ‘C–2’ zone, with a requirement of only 800 square feet of lot area per dwelling unit. (Agreed Statement, p. lb.) Each of the parcels into which appellant subdivided his property contained approximately 925 square feet'.

The contention that the city zoning regulation is in conflict with the state law known as the Subdivision Map Act making sales contrary to Act voidable only at the option of the purchaser, need not be considered, since the city zoning act here in question, is in itself, unreasonable and invalid in relation to the transactions concerning appellant's property.

Article I, Section 14 of the California Constitution provides that ‘Private property shall not be taken nor damaged without just compensation’. In this connection it should be remembered that private property consists not merely of the ownership and possession of a thing, but the unrestricted right to use and enjoy it. Anything which destroys any of these elements of property, to that extent destroys the property itself. Whether the damage or destruction is accomplished in one way or another, the result is the same, and where, as in the present case, ‘No police power’ is offered as an excuse for the interference, the necessity for and the reasonableness of the regulation is a matter for serious consideration.

As stated in 5 Cal.Jur. page 716, ‘With the wisdom of the exercise of the legislative judgment in passing police regulations, the court has no concern’. However where ‘it clearly appears that the law or ordinance has no reasonable or substantial relation to a proper purpose’, the courts should not be lax in curbing what amounts to ‘a clear invasion of personal or property rights under the guise of police regulation’. (Italics added.) As hereinbefore indicated, such is the situation in the instant case. In the language of the amicus curiae brief, ‘a division in the ownership of a lot cannot be said to constitute a threat to public health, safety, morals, order or welfare’.

The judgment is reversed.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.