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

CONSOLIDATED ROCK PRODUCTS COMPANY, a corporation, and Valley Real Estate Company, a corporation, Plaintiffs and Appellants, v. CITY OF LOS ANGELES, a municipal corporation, Defendant and Respondent. *

Civ. 25419.

Decided: August 22, 1961

Donald J. Dunne, Los Angeles, for appellants. Roger Arnebergh, City Atty., Bourke Jones, Claude E. Hilker, Asst. City Attys., Los Angeles, for respondent.

Having exhausted their administrative remedies, plaintiffs brought this action to have declared unconstitutional the zoning law of the city of Los Angeles insofar as it applies to prevent rock and gravel operations on their land; to have enforcement enjoined; and alternatively for a declaration that the zoning law does not in fact prohibit the desired use. From a judgment in favor of defendant, plaintiffs appeal.

The land in question is owned by plaintiff Valley Real Estate Company and held by plaintiff Consolidated Rock Products Company under a lease dated March 1, 1956. The lease term extends to February 29, 1976, with an option for an additional ten years. The property consists of 348 acres, situated in the watercourse known as the Tujunga Wash, and lying northeasterly (upstream) of Hansen Dam in the San Fernando Valley.1 It is a little more than two miles long with an average width of roughly one-quarter mile. The length of the property lies in a general east-west fashion, and is divided approximately in the center by Foothill Boulevard, a northsouth thoroughfare at that point. The property forms substantially the apex of the Tujunga Cone, the second largest alluvial cone of rock, sand and gravel in Los Angeles County. The Tujunga Wash from the eastern to the western termini of the property in question is bordered on the north by the base of the mountains and on the south by bluffs of low hills except for relatively narrow plateaus on either side above the level of the wash. The property is composed of rock, sand and gravel to a depth of about forty feet. It is isolated from land presently being used for other purposes and is situated in a natural amphitheater surrounded by the rugged terrain of the Angeles National Forest on the north, by Tujunga Canyon on the east, by Hansen Dam and its debris basin on the west and by high hills and cliffs on the south. This property and the surrounding area has remained in its present undeveloped state for over 30 years. Within the 300 foot area surrounding the five-mile perimeter of plaintiffs' property there are located fewer than 34 dwelling houses. The communities of Sunland and Tujunga adjoining the property are residential communities, the more greatly developed portions of which lie easterly and southeasterly of plaintiffs' property. In recent years the trend of development of these communities has been in a westerly direction toward the property and along and upon the bluffs north and south thereof.

The 348 acres in question are zoned for agricultural and residential use, and rock, sand and gravel operations are prohibited.

The trial court found that the subject property has great value if used for rock, sand and gravel excavation, but no economic value for any other purpose, and that to contend that it has any economic value for any other use, including those uses for which it was zoned, is preposterous.2 With respect to the effect that rock and gravel operations would have on the nearby communities, the trial court found that dust and notise factors could be controlled to the point where they would be ‘minimal,'3 that there would be no extraordinary danger to children, and in fact that plaintiffs' ‘business of excavating, [etc.] can be conducted on plaintiffs' said property with compatibility to adjacent properties and with minimal detriment to the living amenities or health conditions of the inhabitants of adjacent properties or in the general area and without probable depreciation in property values to the adjacent properties.’

It was also found that the Sunland-Tujunga area has a national reputation as a haven for sufferers from respiratory ailments and is inhabited by many such sufferers and that a considerable portion of its economy is based upon such reputation; that the possible advent of a substantial rock, sand and gravel extraction and processing operation upon the subject property has caused considerable apprehension to the residents of the communities of Sunland and Tujunga of air pollution, traffic and other dangers and annoyances as a result thereof; and that rock and gravel operations upon the subject property could adversely affect the reputation of the Sunland-Tujunga area as a haven for sufferers from respiratory ailments.

The question before us is whether the zoning law, insofar as it prohibits rock, sand and gravel operations on plaintiffs' property, is a valid exercise of the police power. The validity of zoning ordinances generally, insofar as they set forth a plan of community development whereby certain uses are prohibited from segments of the community, is established beyond question. The constitutional question arises only with respect to particular application. Zoning laws are considered by the courts with every intendment in favor of their validity. Although the courts may differ with the legislative body as to the propriety or necessity of a particular enactment, they will not substitute their judgment for that of the municipal legislature, and the mere fact that hardship is suffered is not material, for an exercise of the police power will always affect someone adversely. It must be shown that there has been an unreasonable, oppressive, or unwarranted interference with property rights. Clemons v. City of Los Angeles, 36 Cal.2d 95, 98–99, 222 P.2d 439; Lockard v. City of Los Angeles, 33 Cal.2d 453, 202 P.2d 38, 7 A.L.R.2d 990; Paramount Rock Co. v. County of San Diego, 180 Cal.App.2d 217, 4 Cal.Rptr. 317; Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 386, 38 A.L.R. 1479. These are the rules expressed in the myriad of cases in which property was zoned according to a ‘master plan’ which was set up for the general welfare of the community. In many cases extremely fine judgments must be made, and a judicial reluctance to interfere with legislative determinations which are ‘fairly debatable’ or on which ‘reasonable minds may differ’ (Miller v. Board of Public Works, supra) is both understandable and wise.

The trial court, after stating its own conclusions with respect to noise, dust, danger, and esthetic considerations, found, ‘It is true that reasonable minds might differ and have differed upon the foregoing.'4 It also found that although the value of the property, both to plaintiffs and to the community, for the production of rock, sand and gravel is undebatable, reasonable minds might differ as to the necessity therefor. It is apparent that the trial court's judgment was based on the following reasoning: In determining the validity of zoning ordinances a court will not interfere with the legislative determination, even though it may disagree with the propriety of that determination, so long as reasonable minds may differ as to its propriety (and so long as it is not discriminatory); in the case at bar it is the court's opinion that rock and gravel operations on plaintiffs' property can be conducted in a manner which is compatible with the adjacent communities, but reasonable minds may differ on that question; since reasonable minds may differ, the court cannot upset the legislative enactment. That this approach is not correct when applied to the facts of the instant case will be clearly demonstrated when we review the cases which have dealt with this problem.

In re Kelso, 147 Cal. 609, 82 P. 241, 2 L.R.A.,N.S., 796, was among the first of the controversies of this nature to arise in this state. San Francisco had enacted an ordinance which prohibited the operation of a rock or stone quarry within the City and County of San Francisco. In holding the ordinance to be invalid, the opinion stated, 147 Cal. at pages 611–613, 82 P. at page 241: ‘The effect of the ordinance * * * is to absolutely deprive the owners of real property within such limits of a valuable right incident to their ownership. * * * A limitation of the use pro tanto deprives him of the enjoyment thereof, and any arbitrary action in this regard is a taking of private property without due process of law. * * * While in the exercise of its police power the state may limit or regulate the use, any such limitation or regulation must find its justification in the necessity for the protection of the legal rights of others. If it does not, it is an unwarrantable invasion of property rights, against which the courts will protect. * * * Applying these well-recognized principles to the ordinance before us, we are unable to perceive any ground upon which it may be sustained as a legitimate exercise of the police power. It * * * is an absolute prohibition * * *. Such a prohibition might be justified, if the removal could not be effected without improperly invading the rights of others; but it cannot be doubted that rock and stone may, under some circumstances, be so severed from the land and removed as not in the slightest degree to inflict any injury which the law will recognize.’ See also People v. Hawley, 207 Cal. 395, 413, 279 P. 136. The opinion goes on to say: ‘It may freely be conceded that rock or stone quarrying may be done in such a way and under such circumstances as to occasion injury to others or to make it a public nuisance, and that the state has the power to impose such limitations as are necessary to prevent this. * * * We can see no valid objection to the work of removing from one's own land valuable deposits of rock or stone that may not be entirely met by regulations as to the manner in which such work shall be done, and this being so, we are satisfied that an absolute prohibition of such removal, under all circumstances, cannot be upheld.’

In Matter of Application of Throop, 169 Cal. 93, 145 P. 1029, a South Pasadena ordinance had divided the city into commercial, residential and industrial districts. The operation of a stone crusher was prohibited in the residential district. The description of the land on which the crusher was located is very similar to that in the instant case. The area was sparsely settled and almost completely undeveloped. There were only four dwellings within 200 yards of the crusher. It was held that the ordinance was unreasonable and void in its application. Quoting from Dobbins v. City of Los Angeles, 195 U.S. 223, 25 S.Ct. 18, 49 L.Ed. 169, the opinion stated: “[I]t is now thoroughly well settled by decisions of this court that municipal by-laws and ordinances, and even legislative enactments undertaking to regulate useful business enterprises are subject to investigation in the courts with a view of determining whether the law or ordinance is a lawful exercise of the police power, or whether, under the guise of enforcing police regulations, there has been an unwarranted and arbitrary interference with the constitutional right to carry on a lawful business, to make contracts, or to use and enjoy property.” 169 Cal. 93, 99, 145 P. 1029, 1031. See also People v. Hawley, supra, 207 Cal. at page 411, 279 P. at page 143.

People v. Hawley, supra, involved an action to enjoin the enforcement of Los Angeles city ordinances which prohibited the excavation of rock, sand and gravel on certain lands in and near the Arroyo Seco. One ordinance merely prohibited operations and the other purported to be a zoning ordinance which limited the use of the land for residential purposes, and also expressly prohibited extraction of these materials. As in the case at bar, it was found that the lands were chiefly valuable for the deposit of rock, sand and gravel contained therein. It was also found that contiguous property was built up with homes, dwellings and other buildings, but that the company proposed to conduct the business and excavations in such a way as to create no menace to public health, safety or morals. Furthermore, the trial court found ‘that to permit the company to continue its excavation operations upon said lands subject to the conditions imposed upon said operations * * * would not result in any substantial injury to adjoining property or to persons residing or owning property in the near vicinity of the lands of said company.’ The trial court's judgment that the ordinances were ‘unreasonable, oppressive, unconstitutional and void’ in their application to the plaintiff and its property was affirmed. At page 412 of the opinion, in 207 Cal., at page 144 of 279 P., it was stated that: ‘No authority is required to support the proposition that the business of excavating rock and gravel by the owner from lands belonging to him is a lawful and useful occupation, and cannot be prohibited by legislation except in cases where the enactment of such legislation may be found necessary for the protection of the legal rights of others.’

The case of Wheeler v. Gregg, 90 Cal.App.2d 348, 203 P.2d 37, involved an action by a group of citizens to nullify the granting of a conditional use permit to defendant for the operation of a rock, sand and gravel business in a residential district. The court held for defendant. Although the facts of the case are easily distinguished from those of the instant case, certain language of the opinion is quite pertinent. At pages 364–365 of 90 Cal.App.2d, at page 48 of 203 P.2d it was stated: ‘[T]he reasonableness of the zoning as applied to certain lines of commercial zoning must be distinguished from the reasonableness of zoning regulations prohibiting the development of natural resources. The exclusion of ordinary business enterprises does not destory any inherent property right, and if not discriminatory, will be held reasonable and valid. Most such business can be conducted at any other designated place. But rock and gravel, like any other natural resource, can be obtained only in those particular areas where the deposit has been lodged by nature. Therefore, it follows that to absolutely prohibit the removal of rock, sand and gravel from one's own land in an instance where such land is primarily valuable only by reason of the existence of rock, sand and gravel, might be regarded as an unreasonable exercise of the police power (Trans-Oceanic Oil Corp. v. City of Santa Barbara, 85 Cal.App.2d 776, 789, 194 P.2d 148.)’ (Emphasis added.)

The more recent case of Morton v. Superior Court, 124 Cal.App.2d 577, 269 P.2d 81, 47 A.L.R.2d 478, dealt with an action by the county and state to enjoin the operation of a rock quarry on the ground that it constituted a nuisance and that it was being operated in violation of regulatory ordinances. Again the area in question was similar in description to that in the case at bar. Householders objected to the dust, noise and traffic hazard created. The trial court enjoined the operation and the quarry owner appealed. Although the evidence supported the allegations of public and private nuisance, the judgment was reversed on the ground that there was no evidence that the conditions complained of could not be regulated so as to prevent them from constituting a nuisance. It was stated: ‘The operation of a quarry is, of course, a lawful business. It is not a nuisance per se. Of course, if in fact it is being operated so as to constitute a nuisance, the acts constituting the nuisance may and should be enjoined. It is even possible, where the facts justify it, that is, where the evidence shows that the business cannot be operated at all without creating a nuisance, to prohibit the operation completely. This same result may be reached by a proper and reasonable zoning ordinance. * * * But that is not this case. Here the trial court made no finding that the conditions creating the nuisance could not be rectified. * * * There is a vast difference between regulating the methods of operation of a lawful business by injunction or ordinance, and in completely prohibiting the carrying on of such business. * * * Quarry property is generally a one-use property. The rock must be quarried at the site where it exists, or not at all. An absolute prohibition, therefore, practically amounts to a taking of the property since it denies the owner the right to engage in the only business for which the land is fitted. While, under the police power, such complete prohibition * * * can be decreed, it can only be justified where irreparable injury to others necessarily results and the condition cannot be rectified except by complete prohibition. An injunction against operating property for the only lawful purpose for which it is fitted is an unusual and heroic remedy. It should only be employed where no other means of protecting the complaining public exists. Whether the attempt to regulate be by ordinance or by injunction the approach must be reasonable.

‘The law is well settled to the effect that, when the defendant's business is not a nuisance per se, the injunction should be limited in scope * * * if a less measure of restraint will afford the relief to which plaintiff is entitled. * * * This rule of law has been applied in this state to attempts to prohibit absolutely the operation of quarries, and this is so whether such absolute prohibition is attempted by ordinance or by injunction.’ 124 Cal.App.2d at pages 581–584, 269 P.2d at page 84 (Emphasis added.)

These principles have been applied to cases involving other natural resources in this state (Pacific Palisades Ass'n v. City of Huntington Beach, 196 Cal. 211, 237 P. 538, 40 A.L.R. 782—oil; In re Smith, 143 Cal. 368, 77 P. 180—gasworks; Monterey Oil Co. v. City Court, 120 Cal.App.2d 31, 260 P.2d 846); to rock and gravel operations in the federal courts. [Village of Terrace Park v. Errett, 6 Cir., 12 F.2d 240; Pacific States Supply Co. v. City and County of San Francisco, C.C.N.D.Cal., 171 F. 727. In both of these cases zoning ordinances were held invalid insofar as they completely prohibited operations]; and to rock and gravel operations in other jurisdictions (Annotation, 47 A.L.R.2d 490, 510, and cases cited therein).

The foregoing cases have established beyond question the proposition that when property has little or no value for any use except the extraction of rock and gravel (or other natural resources), operations may not be completely prohibited unless it is impossible to conduct them without creating a nuisance. The judgment in the Morton case, supra, granting an injunction, was reversed even though it was found that the operations were being conducted so as to constitute a nuisance, for the reason that it was not found that the business could not be conducted without constituting a nuisance. Far from so finding in the instant case, the court below found that rock, sand and gravel operations could be conducted in a manner compatible with the adjacent communities.

The finding below, that reasonable minds may differ on the question whether noise and dust factors could be kept to a ‘minimal’ level, and ‘below an acceptable standard,’ amounts to nothing more than a determination that reasonable minds may differ as to whether operations must necessarily constitute a nuisance. Since it must be found, in order to uphold the prohibition, that operations cannot be conducted without creating a nuisance, and the trial court found the contrary to be the fact, it is clear that it is not relevant what the opinion of others might be. The mere use of a zoning ordinance to prohibit operations does not confer upon the City powers which it otherwise does not have. The doctrine of judicial abstention applicable to the testing of zoning laws is founded upon the twofold assumption that (1) zoning demarcations separate properties which can be used for a number of purposes, and (2) any business which may be precluded from a certain location can be conducted elsewhere. Neither assumption applies here.

The cases relied upon by defendant are not in point. The one factually closest to the case at bar is Paramount Rock Co. v. County of San Diego, 180 Cal.App.2d 217, 4 Cal.Rptr. 317. Petitioner's land was zoned for agricultural purposes. The operation of rock quarries, sand and gravel pits, rock crushing and cement pre-mixing plants were prohibited. However, petitioner was allowed to operate a sand pit (there was no rock and gravel at the site) and a cement pre-mixing plant as an existing, non-conforming use. The dispute arose when petitioner sought to operate a rock crushing plant also. The court held against petitioner. Its primary determination was that the rock crusher was an improper extension of the non-conforming use. In holding that the restriction was not unconstitutional, the court took into consideration the following: (1) The land was being used for the purpose for which it was primarily suited; (2) there was no finding that the land was not suitable for agricultural purposes; and (3) other established ready-mix concrete business in the area obtained their materials elsewhere, and did not operate rock crushers on their respective sites. The distinction between that case and this needs no further elaboration.

The rest of the cases on which defendant places its principal reliance are typical of those involving a general plan in which a property owner seeks to have his property removed from its classification because it would be more valuable in another. Lockard v. City of Los Angeles, 33 Cal.2d 453, 202 P.2d 38, 7 A.L.R.2d 990; Clemons v. City of Los Angeles, 36 Cal.2d 95, 222 P.2d 439; Wilkins v. City of San Bernardino, 29 Cal.2d 332, 175 P.2d 542; Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479. In all of those cases the property in question was well suited for the purpose for which it was zoned, and the business prohibited could be conducted elsewhere. The Lockard case distinguished the Hawley, Pacific Palisades, and Smith cases, supra, as relating to the prohibition of the recovery of natural resources. It was stated that ‘considerations which * * * [result] in putting a business out of existence are different from those which justify regulations that do not prevent the operation of a business but merely restrict its location.’ 33 Cal.2d at pages 467–468, 202 P.2d at page 46.

The argument that the instant dispute involves an ordinary zoning law, establishing a general plan within the sphere of legislative judgment, is a red herring. When closely examined it, like the macabre raiment enveloping Poe's ghost, is found to be ‘untenanted by any tangible form.'5 The judgment to be made herein is not where the dividing line between various zones, each suited for the purpose for which it is zoned, should be laid. Rather it is whether plaintiffs have suffered an interference with their property rights which is wholly inconsonant with the public interest sought to be served. This has been peculiarly a judicial determination ever since Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60.

Viewed in this light, the prohibition herein is patently unconstitutional. Plaintiffs have been deprived of substantially all the value of their property, and the City has not demonstrated that this deprivation was necessary for the welfare of the community. While it is no doubt true that the Sunland-Tujunga residents are apprehensive concerning plaintiffs' proposed operations, their apprehensions do not form a legal basis for prohibition those operations. If it is found that plaintiffs cannot in fact conduct their business without creating a nuisance, the appropriate legal action may be commenced.

Because of the view we take of this controversy, it is not necessary to consider plaintiffs' remaining arguments.

The judgment is reversed, and the trial court is directed to render a judgment not inconsistent with the views expressed herein.


1.  The property which is the subject of this litigation is only a part of the original leasehold, the rest of it being situated southerly of Hansen Dam, with Consolidated Roscoe plant being presently supplied by materials originating from the portion of the lease not here involved.

2.  More specifically, the court found that the property is ‘adjacent to the channel through which the waters of the Tujunga Wash flow, and * * * is subject to overflow of water and flooding periodically during periods of heavy rainfall; * * * during periods of heavy floods hundreds of thousands of tons of boulders, rock and other debris have been periodically washed and deposited upon said land by such flood waters.’ Hansen Dam does not provide protection ‘against floods and rain water runoff for the land lying above the Dam, including the subject property, which is now * * * has been and will continue to be subject to flood hazards. * * * [N]one of plaintiffs' subject land has any economic value for any use or purpose other than the excavation of rock, sand and gravel and the operation of a rock crushing and processing plan in conjunction therewith, and * * * if such use * * * be prohibited, such will destroy the economic value thereof. * * * Other than by the expenditure of prohibitive amounts of money in the building of a flood control channel, the subject property serves and can only serve the purpose as a detritus spreading ground and retarding basin for flood water emerging from the Tujunga Canyon before they reach Hansen Dam. Physically it is possible, of course, to erect a structure on the surface of this deposit but the court finds that due to the continuing flood hazard and the nature of the soil to contend that the subject property has any economic value for agricultural, residential, business, commercial or industrial use other than the extraction of rock, sand and gravel is preposterous and that the subject property has a large value for the excavation of rock, sand and gravel * * *.’ It was also found that the use of plaintiffs' property for the production of rock, sand and gravel is in the interest of the public welfare, in that there is only about 11 years' supply remaining in established Rock and Gravel Districts in the San Fernando Valley, and unless new Districts are established, it will be necessary to import the materials from more distant points at an increased cost to the consumers and public of the City of Los Angeles.

3.  The findings read: ‘[A]s to the public health of the community adjacent to the subject property, there is no question but that the Sunland-Tujunga area has a reputation as a haven for sufferers from respiratory symptoms and that the possible advent of a rock, sand and gravel operation near such residential area has caused considerable apprehension of air pollution. Unabated by water, rock and gravel extraction, crushing, screening, stock piling, loading and transporting would undoubtedly cause considerable dust. The court is of the opinion that properly controlled by water, as it is within the power of the legislative body to compel, it appears that the creation of dust for air-borne convection is and can be reduced to a point of pollution below an acceptable standard. Moreover, it was established to the court's satisfaction that any such dust as would not be so eliminated would in any event be inorganic and not organic dust, the latter which primarily induces respiratory ailments. The court therefore concludes that the preservation of health in the Sunland-Tujunga area is a minimal basis for justifying a denial of the present application. ‘It is true that certain noise from the proposed operation is inevitable but appears to be minimal. Increased trucking is likely but the points at which it would make the greatest impact on the surrounding areas would depend in large measure on the manner of handling the extraction operation. Danger to children, no matter how carefully the property is fenced, is, of course, possible but probably no more so than many other places and types of structure which inevitably attract venturesome youths. Esthetically, it is undoubtedly true that an alluvial wash in its natural state is superior to pits therein. * * *’

4.  The Planning Commission approved plaintiffs' application requesting that the property be designated a rock and gravel district. The City Council ultimately denied the application.

5.  The Masque of the Red Death, Edgar Allen Poe.

FOX, Presiding Justice.

ASHBURN and HERNDON, JJ., concur.