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

Margret E. HAMER, Plaintiff and Respondent, v. TOWN OF ROSS, a municipal corporation, Defendant and Appellant.

Civ. 19823.

Decided: June 25, 1962

Robert W. Elliott, City Attorney, Town of Ross, Sturgis, Den-Dulk, Douglass & Anderson, by Robert T. Anderson, Oakland, for appellant. Kennedy, Bloom & Fletcher, Leonard J. Bloom, James M. Fletcher, San Rafael, for respondent.

Plaintiff owns 2.2 acres within defendant town, which has a comprehensive zoning ordinance establishing three classifications for use, to-wit, commercial, community cultural, and residential. The latter is further classified into seven sub-zones, A, B, C, D, D–1, E, and F, which differ only in the minimum size of lots upon which residences are permitted. The entire residential zone is restricted to single family dwellings. Plaintiff's property is classified as residential, Class F, which has a minimum lot size requirement of one acre for each dwelling. The other size classifications are smaller, ranging down to 5,000 square feet.

In 1924, the town enacted its original zoning ordinance and the subject property was then, and ever since has been, restricted to single family dwelling use only. Plaintiff bought the property in 1938. The ordinance was amended in 1946 to establish minimum lot-area requirements in the residential district and plaintiff's property was therein and ever since has been classified as Class F. In 1951, the town adopted a municipal code, and the zoning ordinance, as amended, was retained and included therein. Section 10 105 contains the single family dwelling use provision applicable to the residential district. Section 10 120 provides for the seven size classifications in such district, and section 10 121 provides for the minimum size requirements for each of the respective classes. The code also contains the provision that if any section or subsection thereof is held to be invalid or unconstitutional, the remaining portions of the code shall remain in effect. It also provides for the granting of variances from the zoning regulations.

Plaintiff built a home on the property in 1951, and she has resided there continuously ever since. In 1958, she filed an application for a variance from both the use and size restrictions in order to permit the erection of five apartment buildings, each containing four separate garden apartments or a total of twenty dwelling units. The application was denied and this action in declaratory relief and mandamus followed.

Defendant appeals from the judgment, which declares the foregoing restrictions to be unconstitutional, so far as they apply to the subject property, and directs the issuance of a building permit for the construction of said apartment buildings as shown in the application for a variance.

The general validity of the zoning plan as provided in the ordinance is not in question, the principal issue being the validity of the use and size restrictions as applied to plaintiff's property.

The subject property fronts on the westerly side of Sir Francis Drake Boulevard, which runs north and south. The southerly boundary abuts the line between Ross and the unincorporated community of Kentfield. The rear or westerly side is bounded by an abandoned railroad right of way, from which the tracks have been removed. Single family dwellings are located on the other side of the right of way and also to the north of the property. Corte Madera Creek runs through the property in a northerly and southerly direction. Across the boulevard is Ross General Hospital, the main portion of which is in Kentfield. This hospital was there when respondent purchased her property. That portion of its grounds directly across from respondent's property is used by the hospital as a parking area and utility service facility. Immediately north of the hospital is a non-conforming two-family dwelling, converted from a single family dwelling, and there is a non-conforming apartment building located in the commercial zone, approximately 250 feet from the northwest corner of respondent's property. These two are the only multiple residential dwellings in Ross, and were in existence when the original zoning ordinance was enacted in 1924. They are permitted, not by way of variance, but by the usual provision in such ordinances which allows the continuance of non-conforming uses.


It is not fairly or reasonably debatable that the inclusion of respondent's property in Class F is unreasonable, arbitrary and discriminatory. All of the expert testimony, even that introduced by appellant, is to this effect. The principal factors supporting this conclusion are the surrounding area of single family dwellings on smaller lots, the proximity of the business district, the property's frontage on a busy thoroughfare, the location of the hospital across the street, and the construction problems arising from the existence of the creek which dissects the property.

We are mindful that, in outlining the various areas being zoned, the legislative authority must draw the line somewhere. But the record presents no justification for the distinction between the subject property and the property directly across the abandoned railroad right of way, which is placed in Class C and has a minimum area requirement of only 7,500 square feet.

Section 10 120 of the Municipal Code, insofar as it places respondent's property in Class F, is held to be invalid.


‘It is well settled that zoning ordinances, when reasonable in object and not arbitrary in operation, constitute a justifiable exercise of police power, and that the establishment, as part of a comprehensive and systematic plan, of districts devoted to strictly private residences or single family dwellings, from which are excluded business or multiple dwelling structures, is a legitimate exercise of the police power.’ (Wilkins v. City of San Bernardino, 29 Cal.2d 332, 337, 175 P.2d 542)

Respondent does not contend, and the lower court did not find, that the section of the town's zoning ordinance (§ 10 105) which restricts the use of property in the residential district to single family dwellings is invalid in its general application. The contention is that it is only invalid as applied to her property.

Respondent proposes to use the property for the erection of five one-story buildings, each containing four separate dwelling units. This in itself negates any contention that the property is not suitable or adaptable as sites for residential purposes. The lower court expressly found that ‘[t]he use of plaintiff's property for single-family residential purposes on lots of less than one acre in size would be suitable to and compatible with surrounding uses' and that ‘plaintiff's property cannot be divided into more than five building sites' but that ‘[i]t is only speculative and not reasonably debatable that plaintiff's property could be economically used for such purpose even if rezoned therefor.’ The findings further state that the use of the property for single family dwellings would require expenditures for site improvement and flood control and ‘that such expenditures render single-family residential use of said property economically unfeasible’ and make the present value of the property for such purpose ‘minimal or negative.’ (emphases ours) There was expert testimony that these same expenditures would be involved in developing the property for use by the proposed five apartment buildings.

The lower court further found that ‘the highest and best use of plaintiff's property consistent with the character of the area in which the property lies is multiple residential use; and that said property also has great value for commercial or professional office building use.’

It is abundantly clear that the lower court's judgment is based entirely upon the premise that the use restriction in the zoning ordinance is invalid as applied to the subject property because such property is much less valuable if it may be used only for single family dwellings. It has been settled by numerous decisions that the rule in California is that financial loss to a property owner is not a sufficient ground for declaring a zoning ordinance invalid. (Zahn v. Board of Public Works, 195 Cal. 497, 512, 234 P. 388; Wilkins v. City of San Bernardino, 29 Cal.2d 332, 338, 175 P.2d 542; Lockard v. City of Los Angeles, 33 Cal.2d 453, 466–467, 202 P.2d 38, 7 A.L.R.2d 990; McCarthy v. City of Manhattan Beach, 41 Cal.2d 879, 890, 264 P.2d 932; Johnston v. City of Claremont, 49 Cal.2d 826, 839, 323 P.2d 71) While the case is factually distinguishable, it may be noted that, in Consolidated Rock Products Co. v. City of Los Angeles (April 12, 1962) 57 A.C. 557, 20 Cal.Rptr. 638, 370 P.2d 342, the Supreme Court recently upheld the validity of a zoning ordinance which restricted the use of the subject property to agricultural and residential use even though the trial court found that such property had great value for rock, sand and gravel excavation but “no appreciable economic value” for any other purpose and that any suggestion that it had any economic value for any other use, including the uses for which it was zoned, would be ‘preposterous.’ The Court, after quoting from Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303, to the effect that “[i]f the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control,” then stated (p. 565, 20 Cal.Rptr. p. 643, 370 P.2d p. 347): ‘It was in clear recognition of this principle of the division of functions between the legislative and judicial branches that the trial judge in effect concluded that although his own determination, if the questions presented had been his to decide, would have been to the contrary, since under the evidence presented to the legislative body and to the court reasonable minds could differ, he must bow to the legislative conclusion.’

In the instant case the trial judge reached a conclusion opposite to that of the town council of Ross. An appellate court is not bound by this conclusion if the record shows that the question is fairly debatable and that there may be a reasonable difference of opinion on the subject. (Johnston v. City of Claremont, supra, 49 Cal.2d p. 839, 323 P.2d 71; Lockard v. City of Los Angeles, supra, 33 Cal.2d p. 462, 202 P.2d 38) The general rule that findings of fact by a trial court will be upheld if supported by any substantial evidence is therefore not the rule applicable to the instant type of case. As stated in Lockard, 33 Cal.2d at page 462, 202 P.2d at page 43, ‘the function of this [Supreme] court is to determine whether the record shows a reasonable basis for the action of the zoning authorities, and, if the reasonableness of the ordinance is fairly debatable, the legislative determination will not be disturbed.’

The situation existing in the Town of Ross was stated by one of the expert witnesses, a planning consultant by profession, to be as follows: ‘Looking at the town and studying its zoning ordinance, I have the strong feeling that the people in the town of Ross want what we might call a high type of residential community, single family home residential community. I get that feeling from looking at the town and from reading its ordinance. I think that this property is usable for single family residential purposes and I would feel that if apartments were permitted on this property it would be contrary to the desires of the people of the town and it would either create a spot zoning, a new type of zoning for apartments on one particular piece of property, and it would then be a monopoly in that case. Either that, or the writing of a multiple family or apartment zone provision into the ordinance would open the door for pressure, possibly in requests for more of the same apartment zoning; if this property were permitted to be zoned for apartments it would be rather difficult to prevent the properties across Sir Francis Drake Boulevard from going to the same classification. And once the apartment zoning were established on each side of Sir Francis Drake it would be rather hard—I would assume it would be rather hard to hold it from spreading on north from either side of Sir Francis Drake Boulevard. I think that you would be opening a door there to a change in the character of the town by destroying its strong single family residential character and opening the door for a new type o development which apparently, up until now, has not been considered desirable in this town.’

Appellant called as a witness a real estate broker and appraiser to whose qualifications as an expert respondent stipulated. He testified that the fair market value of the land, under the existing zoning provisions, was $25,000, less $10,400 for the cost of development, or a net value of $14,600; that flood control would be provided by the fill that would be used as a part of the cost of development; that if the property, exclusive of respondent's home, was allowed to be divided into five or six additional building sites, the net value for use thereof for single family dwellings would be increased substantially; that such use was economically feasible; that the property would be even more valuable if used for the twenty apartments proposed by respondent.

The case of Wilkins v. City of San Bernardino, supra, involves a factual situation very similar to this case. The property was situated in a single family residential zone and the owner desired to use it for multiple dwelling purposes; he showed that there were other multiple residential uses in the general area, that there was a business area immediately adjacent, that it would be more profitable to use the property for multiple dwellings and would cause hardship if he were not permitted to use it for such purpose, and that he had twice applied for rezoning and had been denied on each occasion. The trial court made findings which are remarkably similar to the findings made by the trial court in this case; these were, among others, that the use of the property for multiple dwelling purposes is in the enjoyment of a substantial property right of plaintiff; that such a use is not detrimental to health, safety, morals or welfare; that such use does not impede, hinder or interfere with the attainment of the objectives of the zoning ordinance; that the enforcement of the ordinance would be an oppressive, confiscatory and unreasonable restriction on plaintiff's property rights; that multiple dwelling status appears to exist on both sides of Marshall Boulevard between Acacia and F Streets; that on Marshall Boulevard between Acacia and E Streets (lots 71 and 72) there are four frontages, each occupying less than the 5,000 square feet required by another ordinance for single family dwellings; that it is impracticable to maintain and limit the use of the westerly 112 feet of lots 69 and 70 to a single family classification; that no consideration of public health, peace, morals, safety or welfare requires that plaintiff be prohibited from using the structures as multiple dwellings; that the apartment buildings upon the middle portion of lots 69 and 70 are unsightly and no ornament to the locality; that the extension of those buildings upon the west 112 feet of those lots presents a decided improvement in the general view from the Acacia Street side; that the land values have increased because of the development of a community business center. The trial court determined that the zoning regulation was invalid as applied to the property. The Supreme Court reversed, holding that there was no arbitrary, oppressive or unreasonable application of the zoning ordinance to plaintiff's property.

We have examined the entire record with care and have determined as a matter of law that the question as to the reasonableness of the requirement as to the use of the subject property for single family dwellings only is fairly and reasonably debatable. That being so, the enactment of section 10 105 of the zoning ordinance constitutes a valid exercise of the police power of the town council.


Section 1105 of the Ross Municipal Code provides that, if any section or subsection of said code is held to be invalid or unconstitutional, the validity of the remaining portions shall not be affected thereby. The restriction on the use of the property in the residential district for single family dwellings only was in effect from the years 1924 to 1946, without there being any restriction as to the size of the lots. The size restriction provision was enacted in 1946. The Municipal Code was adopted in 1951 and included the existing zoning regulations, as amended from time to time.

There would appear to be no doubt that the single family dwelling use restriction may operate with efficacy independently of the minimum area restrictions. It was so operative for 22 years. The general rule in such a situation is that only the invalid portion of a legislative enactment should be declared ineffective and the valid balance should be retained and enforced. (Skyline Materials, Inc. v. City of Belmont, 198 A.C.A. 478, 488, 18 Cal.Rptr. 95)

In City of La Mesa v. Tweed & Gambrell Planing Mill, 146 Cal.App.2d 762, 771–772, 304 P.2d 803, 809, the court said: ‘Only those provisions of Ordinance No. 618 concerning the liquidation of nonconforming uses, as applied to defendants' property, are invalid. This ordinance contains the usual saving clause which provides, that in the event any part thereof be declared invalid the remaining parts shall not be affected by such invalidity. Where the validity of an ordinance is attacked upon the ground that a part thereof is unconstitutional, and a severability clause is included therein, the court may consider such a clause as a declaration of intention by the enacting body that ‘insofar as lay within its power a separable invalid portion of the act should not destroy the whole.’ Danskin v. San Diego Unified School Dist., 28 Cal.2d 536, 555, 171 P.2d 885, 897; Bacon Service Corporation v. Huss, 199 Cal. 21, 32, 248 P. 235. Although part of an ordinance may be unconstitutional, such fact does not render the whole thereof void if the remaining provisions can be separated from the portions which are valid. ‘The unconstitutional provisions will not vitiate the whole act, unless they enter so entirely into the scope and design of the law, that it would be impossible to maintain it without such obnoxious provisions.’ Danskin v. San Diego Unified School Dist., supra, 28 Cal.2d 536, 555, 171 P.2d 885, 897; National Ice & Cold Storage Co. of California v. Pacific Fruit Exp. Co., 11 Cal.2d 283, 293, 79 P.2d 380. The invalid part of a statute is not inseparable from the remainder, unless all of the parts are so interdependent that to eliminate the former would destroy the force of the whole statute. Conversely, the valid part of a statute will be sustained, even though other parts are invalid, if the former can accomplish one or all of the purposes thereof without the latter. People v. Lewis, 13 Cal.2d 280, 284, 89 P.2d 388; National Ice & Cold Storage Co. of California v. Pacific Fruit Exp. Co., supra, 11 Cal.2d 283, 293, 79 P.2d 380; Robinson v. Bidwell, 22 Cal. 379, 386. Ordinance No. 618 can be upheld and enforced without the objectionable provision fixing a time limit for the termination of a nonconforming use. Danskin v. San Diego Unified School Dist., supra, 28 Cal.2d 536, 555, 171 P.2d 885. It is a comprehensive zoning ordinance, the general scope and design of which will not be impossible to maintain without the part declared unconstitutional.'

We conclude that the restrictive use provision (§ 10 105) should remain in effect as to the subject property.

The result is that respondent's property remains zoned for single family dwellings, with no existing classification or restriction as to lot size. This places the property back in the same situation as it was when respondent purchased it in 1938 and as it was from the years 1924 to 1946, when the lot size classifications were enacted. Any reclassification consistent with this opinion is the function of the legislative body, not of this court.

The judgment is reversed except as to that portion thereof which holds that sections 10 120 and 10 121 of the Municipal Code of the Town of Ross are unconstitutional and invalid as applied to respondent's property, and as to that portion only the judgment is affirmed. The parties are to bear their own respective costs.

AGEE, Justice.

KAUFMAN, P. J., and SHOEMAKER, J., concur.

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