CITY OF TORRANCE v. TRANSITIONAL LIVING CENTERS FOR LOS ANGELES INCORPORATED

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Court of Appeal, Second District, Division 4, California.

CITY OF TORRANCE, a Municipal Corporation, Plaintiff and Appellant, v. TRANSITIONAL LIVING CENTERS FOR LOS ANGELES, INCORPORATED, a non-profitcorporation, Defendant and Respondent.

Civ. 58832.

Decided: February 17, 1981

Stanley E. Remelmeyer, City Atty. of Torrance, and William G. Quale, Deputy City Atty., for plaintiff and appellant. Quan, Cohen, Kurahashi, Hsieh & Scholtz and Kenneth P. Scholtz, Los Angeles, for defendant and respondent.

The City of Torrance, a chartered city, appeals from the denial of a preliminary injunction to prohibit Transitional Living Centers (hereinafter “TLC”) from operating a social rehabilitation residential facility for 15 mentally disordered persons at 18312 Mansel Avenue, which is located in an R-2 zone in the City of Torrance, in violation of that R-2 zoning and without prior City zoning approval. The facts are uncontradicted that as of 10 September 1979 the facility commenced operation with six mentally disordered persons in residence and that TLC intends to add another nine. TLC contends that it needs no zoning approval from the City to do so.

By a resolution adopted 21 December 1971 the City granted a conditional use permit to the owners of 18321 Mansel Avenue to operate a “board and care home for the aged” thereat to be occupied by not more than 10 boarders at any one time. One of several conditions was that “the proposed use be restricted to the existing owners and not run with the land.” The County of Los Angeles issued its business license for a “home for aged” and the State of California Department of Health issued its license for a residential care home for “twelve well adults” and the property was so used. TLC subsequently leased the property and in September 1979 obtained a state license to serve 16 resident mentally disordered adults on the premises. TLC had previously contracted with the County of Los Angeles to provide certain services for these people. These included:

“K. Provide 24-hour on-site counselor coverage supervision.

“L. Provide individual and group counseling as needed.

“M. Provide supervision of medication of a licensed Psychiatric Technician.”

Beyond this, no medical services were specifically provided for.

The Torrance Municipal Code establishes the city council as the zoning authority for the City. Zone R-2 is for two-family residences. Certain other uses may be permitted only by conditional use permit. Rest homes and homes for the aged are conditionally permitted in R-2 zones;[FN1] hospitals and nursing homes are not. Hospitals are conditionally permitted in R-3, R-R-3, R-4, C-1 and C-2 zones. No permit is required for a hospital in C-3, C-4 and C-5 zones. Nursing homes are conditionally permitted in R-3, R-R-3, R-4, C-1, C-2 and C-3 zones. No permit is required for a nursing home in C-4 and C-5 zones.

The use that TLC proposes to make of the premises is obviously not permitted in an R-2 zone in the absence of overriding state authority unless local zoning approval be first obtained. This is so even if the proposed use be considered to be a rest home.

TLC contends that the conditional use permit heretofore issued for the use of the premises runs with the land and authorizes the proposed use. The City contends that the quoted condition in the conditional use permit prevents it from running with the land, or, alternatively, that it should be construed as a time limit running with the land which has expired. The City cites no supporting authority. We disagree with the City's contention. It is authoritatively established in California that such permits do, in fact, run with the land. (County of Imperial v. McDougal (1977) 19 Cal.3d 505, 510, 138 Cal.Rptr. 472, 564 P.2d 14.) It “is not personal to the owner at the time of the grant, but is available to any subsequent owner.” (Cohn v. Board of Supervisors (1955) 135 Cal.App.2d 180, 184, 286 P.2d 836.) If the City had desired to impose a time limit on the conditional use permit, it could have done so quite simply. However, the conditional use permit on the premises does not authorize the use proposed by TLC. A board and care home for 10 aged people is all that it authorizes. It may reasonably be inferred from the terms of the license issued by the State of California Department of Health with respect to the use of the same premises that “well” people were contemplated. A social rehabilitation residential facility for 15 mentally disordered persons is something entirely different.

TLC further contends that Welfare and Institutions Code section 5120 permits its proposed use of the premises without prior zoning approval from the City.

Welfare and Institutions Code section 5115 provides in pertinent part that, “It is the policy of this state that mentally handicapped persons are entitled to live in normal residential surroundings and should not be excluded therefrom because of their disability.” It further states that, “In order to achieve uniform statewide implementation of the policies of this section , it is necessary to establish the statewide policy that the use of property for the care of six or fewer mentally disordered persons is a residential use of such property for the purposes of zoning.” (Emphasis added.)

In pertinent part section 5116 states that, “Pursuant to the policy stated in Section 5115, a state-authorized, certified, or licensed family care home, foster home, or group home serving six or fewer mentally disordered persons , shall be considered a residential use of property for the purposes of zoning if such homes provide care on a 24-hour-a-day basis. (P) Such homes shall be a permitted use in all residential zones, including, but not limited to, residential zones for single-family dwellings.” (Emphasis added.)

In a carefully reasoned opinion based upon its legislative history, in City of Los Angeles v. Department of Health (1976) 63 Cal.App.3d 473, at pages 476-480, 133 Cal.Rptr. 771, the court holds that section 5116 is applicable to both chartered cities, such as the City of Torrance, and to general law cities and that said statute is part of a statutory scheme for the treatment of mentally ill persons which is of indubitable statewide concern; it was clearly the intent of the Legislature to preempt local zoning limitations insofar as they govern the location of homes for placement of six or fewer mentally disordered persons in residential zones. Hence, section 5116 prevails over any provisions to the contrary in a local zoning ordinance despite the general recognition that zoning is a “municipal affair.” However, no such preemption was even attempted by the Legislature in sections 5115 and 5116 with respect to zoning ordinances limiting the location of homes for larger numbers of mentally disordered persons.

TLC relies on section 5120 which provides in significant part as follows:

“It is the policy of this state that the care and treatment of mental patients be provided in the local community (I)t is necessary to establish the statewide policy that, notwithstanding any other provision of law, no city or county shall discriminate in any zoning ordinances between the use of property for the treatment of general hospital or nursing home patients and the use of property for the psychiatric care and treatment of patients,

“Health facilities for psychiatric care and treatment shall be permitted in any area zoned for hospitals or nursing homes, or in which hospitals and nursing homes are permitted by conditional use permit.”

The prohibited discrimination is not charged against the City herein. Applying the same analysis to section 5120 that the court applied to section 5116 in City of Los Angeles v. Department of Health, supra, 63 Cal.App.3d 473, 133 Cal.Rptr. 771, compels the conclusion that section 5120 also applies to chartered cities and that local zoning ordinances are preempted to the extent, and only to the extent, indicated in section 5120. By its very wording the section does not preempt all zoning limiting the location of “health facilities for psychiatric care.” It overrides contrary local zoning ordinances only to the extent that the latter may limit the location of such facilities in areas (1) zoned for hospitals or nursing homes or (2) in which hospitals and nursing homes are permitted by conditional use permit. The premises herein are not located in an area zoned for hospitals or nursing homes. Nor is the location one in which hospitals are permitted by conditional use permit. However, TLC contends that, contrary to the plain wording of the Torrance Municipal Code, nursing homes are permitted in this R-2 zone by conditional use permit and that the proposed use qualifies as a nursing home.

The term “nursing home” is not defined in the Welfare and Institutions Code. Section 5120 was enacted in 1971 (Stats.1971, ch. 815). However, ever since 1955 section 430.12 of the Health and Safety Code has defined “nursing home” as follows:

“ ‘Nursing home’ means a facility for the accommodation of convalescents or other persons who are not acutely ill and not in need of hospital care, but who require skilled nursing care and related medical services (1) which is operated in connection with a hospital or (2) in which such nursing care and medical services are prescribed by, or are performed under the general direction of, persons licensed to practice medicine or surgery in the State.”

TLC does not contend that its proposed use falls within this definition of “nursing home.” Instead it vaguely urges, without citation of authority, that the term “nursing home” as used in section 5120 “be broadly construed to effect the state's preemptive purpose.” We agree that the keystone principle of statutory construction is to effect the purpose of the Legislature in enacting the statute. Otherwise, however, we disagree. We have been unable to find, and TLC has not referred us to, any legislative history bearing on the meaning of the term “nursing home” as used in section 5120. The Legislature was undoubtedly aware of the quoted definition when it enacted section 5120. The term is also used without further definition in Welfare and Institutions Code section 13554 (Stats.1965, ch. 1784; repealed Stats.1973, ch. 1216) and in Civil Code section 1934.5 (Stats.1978, ch. 628). Nor has the term been previously construed by an appellate court. In these circumstances, we must construe the term in accordance with applicable rules of statutory construction. Statutes dealing with the same subject should be construed, if possible, so as to harmonize them. (Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918, 80 Cal.Rptr. 89, 458 P.2d 33; Select Base Materials v. State Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672.) Likewise, every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized. (Stafford v. L. A. Etc. Retirement Board (1954) 42 Cal.2d 795, 799, 270 P.2d 12.) Thus, the term “nursing home” as used in said section 5120 must be given the definition found in Health and Safety Code section 430.12.

TLC suggests that its proposed use falls within the definition of “rest home” as that term is used in the Torrance Municipal Code. If so, TLC is eligible to apply for a conditional use permit from the Torrance City Council as the premises are in an R-2 zone. Even if the proposed use is thusly defined, TLC is not entitled to make the proposed use of the premises without prior City zoning approval under the theory that the Code permits nursing homes in an R-2 zone upon the granting of a conditional use permit. Even if a rest home is a specialized type of nursing home, section 5120 overrides the zoning ordinance only with respect to those zones in which any type of nursing home may be located upon the granting of a conditional use permit.

We therefore conclude that said section 5120 does not permit the use proposed by TLC on the subject premises. The order denying the preliminary injunction is reversed and the case is remanded to the superior court which is ordered to enter a preliminary injunction in accordance with the views expressed herein.

FOOTNOTES

FOOTNOTE.  

1.  On 8 January 1980 the Torrance Municipal Code was amended so that rest homes are no longer permitted in either an R-1 or R-2 zone.

EARLY,[FN*] Associate Justice. FN* Assigned by the Chief Justice of California.

WOODS, Acting P. J., and McCLOSKY, J., concur.