GRIFFIN DEVELOPMENT COMPANY v. CITY OF OXNARD (1984)

NATURE OF APPEAL:

The instant matter involves the City of Oxnard Ordinance No. 1805 considered by our State Supreme Court in Shelter Creek v. City of Oxnard (1983) 34 Cal.3d 733, 195 Cal.Rptr. 361, 669 P.2d 948 wherein an application for a permit to convert an apartment complex into a stock corporation was denied by the city on the basis that the applicant there did not meet the requirements of the ordinance.   The State Supreme Court held that the ordinance did not apply to the applicant because of a grandfather clause in the state statute (Gov.Code, § 66410, et seq.) enabling the city to enact the ordinance, thus exempting the applicant.   The State Supreme Court therefore did not address the issue of constitutionality also raised there.

The state statute does not similarly exempt the applicant at bench (appellant).   Therefore we must decide if a city, pursuant to an ordinance, constitutionally may deny an apartment complex owner permission to convert the apartments to condominiums where there are no changes in the use of the land, or improvements, all of which are lawful and would otherwise be allowed to continue if the ownership remained that of a rental apartment complex.   We hold that respondent, the City of Oxnard (City) may not withhold such permission, and we reverse the trial court's denial of appellant's petition for a writ of mandate requiring City to issue the permit.

BACKGROUND:

Griffin Development Company (appellant) owns a 72-unit apartment complex in the City of Oxnard (respondent).   It was built in 1978–1979.   When built, the apartment complex met all of the then existing City standards.   At that time there were no standards for condominium projects.   Subsequently, respondent City enacted an ordinance purporting to regulate the conversion of apartments into condominiums.   The ordinance provides that an existing apartment unit may not be converted into a condominium without a special-use permit and an apartment building, which is a non-conforming use because of parking, is not entitled to conversion.

Appellant applied for a special use permit to convert.   City denied the application on the ground that appellant did not meet the condominium requirements of its new ordinance, Oxnard Ordinance No. 1805, although appellant met all of the parking requirements and building and space provisions in force when the apartments were built.

Appellant contends respondent City may not refuse a special-use permit to permit the conversion of the apartments into condominiums.   Specifically it argues that the ordinance is invalid because of state preemption and unconstitutional, both on its face and as applied to appellant in that it deprives appellant of property without due process of law.   Respondent City claims the right to deny the permit, arguing that under the police power of zoning a city may declare a change of form of ownership to be a change in “use.”

DISCUSSION:

1. The Preemption Problem

 Appellant contends the state Subdivision Map Act (Gov.Code, § 66410, et seq.) preempts regulation in the field sought to be covered by City of Oxnard Ordinance No. 1805.   We disagree.   In our view the ordinance does regulate activity in the field covered by the Subdivision Map Act, but except for a minor discrepancy relating to the amount of notice to which tenants are entitled it is not in conflict therewith.

“The fact that the state has legislated on the same subject does not necessarily exclude the municipal power.   The municipality may make additional regulations, different from those established by the state and not inconsistent with the purpose of the general law.   It is only where the Legislature has manifested an intention, expressly or by implication, wholly to occupy the field, so that any local regulations will necessarily be inconsistent with the state law, that municipal power is lost.”  (5 Witkin, Summary of Cal.Law (8th ed. 1974) Test of Valid Regulation, § 445, p. 3743.)

The Subdivision Map Act itself expressly provides for municipal regulation in several of the same areas it covers.   For example, Government Code section 66427 states:  “Nothing herein shall be deemed to limit the power of the legislative body to regulate the design or location of buildings in such a project by or pursuant to local ordinances.”  (Emphasis added.)   There are other provisions of the Map Act which provide for local regulation of condominium conversions.  (See, e.g., Gov.Code, §§ 66427.1, subd. (e), 66427.2, 66427.4 and 66452.8.)   It thus appears that the state has not intended to wholly occupy the field of regulating condominium conversions although condominium conversion projects are statutorily “subdivisions” within the meaning of the Subdivision Map Act.

 Local agencies can adopt regulations involving matters covered by the Map Act so long as such regulations are not inconsistent with the Act.   (Friends of Lake Arrowhead v. Board of Supervisors (1974) 38 Cal.App.3d 497, 505, 113 Cal.Rptr. 539;  Longridge Estates v. City of Los Angeles (1960) 183 Cal.App.2d 533, 539, 6 Cal.Rptr. 900.)

Because our decision is not based on the theory that City has exceeded the scope of its authority under the preemption doctrine, we need not discuss the preemption problem further nor need we answer appellant's contention that City has exceeded its authority to regulate with reference to design or improvement as it relates to City's general plan and implicitly permitted in Government Code section 66418 (design) and section 66419 (improvement).   Because of our conclusion that City's regulation in this area is not preempted by the state statute, we must next decide whether under a lawful exercise of its police power City's act on the facts before us comports with due process of law.

2. Constitutional Right of Due Process

City relies upon the exercise of police power established by common law (Euclid v. Ambler (1926) 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303) and constitutionally authorized by California Constitution Article XI, section 7.

 Nonetheless, while the “police power” accords municipalities discretion in enacting local legislation, “[t]he governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited․”  (Nectow v. Cambridge (1928) 277 U.S. 183, 188, 48 S.Ct. 447, 448, 72 L.Ed. 842 cited in Eldridge v. City of Palo Alto (1976) 57 Cal.App.3d 613, 623, 129 Cal.Rptr. 575.)  (See also, Candlestick Properties, Inc. v. San Francisco Bay Conservation etc. Com. (1970) 11 Cal.App.3d 557, 572, 89 Cal.Rptr. 897.)

The due process and equal protection clauses of the federal and state Constitutions are the chief limitations on the exercise of the police power.   (See Miller v. Board of Public Works (1925) 195 Cal. 477, 234 P. 381;  Rathkopf, The Law of Zoning and Planning, “Police Power” § 2.02[2] (1980);  5 Witkin, Summary of Cal.Law (8th ed. 1974) Constitutional Law, § 442, p. 3741.)  Article I, Section 7, subdivision (a) of the California Constitution, for example, provides that “[a] person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws;  ․”   Accordingly, “where the exercise of that power results in consequences which are oppressive and unreasonable, courts do not hesitate to protect the rights of the property owner against the unlawful interference with his property.”  (Skalko v. City of Sunnyvale (1939) 14 Cal.2d 213, 215–216, 93 P.2d 93.)  “[T]he zoning power is not a license for local communities to enact senseless and arbitrary restrictions․”  (Moore v. East Cleveland (1977) 431 U.S. 494, 507, 97 S.Ct. 1932, 1939, 52 L.Ed.2d 531.)   If a zoning regulation goes too far, it will be recognized as a taking.  (Penna. Coal Co. v. Mahon (1922) 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322.)

The constitutionality of zoning as a proper exercise of the police power was well established in Euclid v. Ambler Co., supra, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 and Miller v. Board of Public Works, supra, 195 Cal. 477, 486, 234 P. 381.   But as the court explained in Miller:  “It is not, however, illimitable and the marking and measuring of the extent of its exercise and application is determined by a consideration of the question of whether or not any invocation of that power, in any given case, and as applied to existing conditions, is reasonably necessary to promote the public health, safety, morals [citations] or general welfare of the people of a community.”  (Id. at p. 484, 234 P. 381.)  “It cannot be gainsaid, however, that many municipalities, evidently upon the theory that zoning is a panacea for civil ills, have, under the guise of zoning, sought to enact and enforce unreasonable and discriminatory ordinances.   Some of these attempted regulations have been palpably for the exclusive and preferential benefit of particular localities.   The duty, therefore, devolves upon the courts to determine in each instance whether or not the ordinance, either in whole or in part, is invalid.”  (Id. at p. 489, 234 P. 381.)

Accordingly, the California Supreme Court for those reasons has on numerous occasions declared as invalid municipal zoning ordinances that exceeded the police power.  (City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 164 Cal.Rptr. 539, 610 P.2d 436;  see, e.g., Roman Cath. etc. Corp. v. City of Piedmont (1955) 45 Cal.2d 325, 289 P.2d 438;  Skalko v. City of Sunnyvale, supra 14 Cal.2d 213, 93 P.2d 93;  Reynolds v. Barrett (1938) 12 Cal.2d 244, 83 P.2d 29;  and Matter of Application of Throop (1915) 169 Cal. 93, 145 P. 1029.)   As stated in Throop at p. 99, 145 P. 1029:  “․ [M]unicipal bylaws and ordinances ․ are subject to investigation in the courts with a view to 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.”   Other courts have also declared zoning ordinances constitutionally invalid.   (See, e.g., Moore v. East Cleveland, supra, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 [zoning ordinance interfering with family members' occupancy of homes, declared unconstitutional as violation of due process];  Carlin v. City of Palm Springs (1971) 14 Cal.App.3d 706, 92 Cal.Rptr. 535;  Del Fanta v. Sherman (1930) 107 Cal.App. 746, 290 P. 1087.)

 The foregoing amply illustrates that our review is not to question the wisdom of permissible legislation, but we review because the courts have a duty to examine the reasonableness of the exercise of municipal police power.

 A local police power ordinance is invalid if it is arbitrary, discriminatory, unreasonable, oppressive, not substantially related to the public health, safety or welfare or only marginally serves legitimate purposes while infringing on personal interests protected under due process standards.   (Moore v. East Cleveland, supra, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531.)   We hold the Oxnard ordinance and resolution as applied to appellant are unreasonable, oppressive and not substantially related to the public health, safety or welfare.

We emphasize the standard for review of the fairness and reasonableness of City's exercise of its police power by enactment of the ordinance before us.   [That] “standard of review is determined by the nature of the right assertedly threatened or violated rather than by the power being exercised or the specific limitation imposed.”  (Schad v. Mt. Ephraim (1981) 452 U.S. 61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671;  citing Thomas v. Collins (1945) 323 U.S. 516, 529–530, 65 S.Ct. 315, 322–323, 89 L.Ed. 430;  see also Moore v. East Cleveland, supra, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531.)

The ordinance before us requires that one wishing to convert apartments to condominiums meet certain mandatory and advisory physical standards.   The advisory standards incorporated into the ordinance are set out in Resolution no. 7658, which was originally enacted to apply to “new residential condominiums” but has since been made applicable to condominium conversions through section 34–266(b) of the ordinance.   The resolution requires, inter alia, that (1) a housing unit shall contain not less than two separate bedrooms;  (2) a housing unit shall not be smaller than 1,000 square feet;  (3) parking shall be provided at a ratio of two spaces in a garage unit, such parking to be located no further than 50 feet from the unit served;  (4) visitor parking shall be required at a ratio of one space per dwelling unit, such parking to be located no further than 100 feet from any unit;  (5) private patio areas shall be at least 20 percent of the gross floor plan area of the residence;  (6) major entrances to residents shall be separated from entrances to adjacent units;  and (7) a private storage area shall be provided each residence.   Items (3) and (4) are “mandatory” by virtue of municipal code section 34–226 which states “[N]o apartment building which is a non-conforming use or non-conforming structure because of parking ․ shall be eligible for conversion.”

These requirements for condominium conversions, on their face, are questionable as unreasonable and overextensive invasions into private family life and choice.  (Moore v. East Cleveland, supra, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531;  City of Santa Barbara v. Adamson, supra, 27 Cal.3d 123, 164 Cal.Rptr. 539, 610 P.2d 436.)   Although City alleges that these requirements are related to the public health, safety and welfare, the relation is obscure and unsubstantial.   The requirements serve the purposes only marginally.   Similar requirements are not imposed on ordinary apartment buildings not owned by the occupants.   Yet the effect of rental apartment construction upon municipal services and municipal concerns is not established to be so significantly less as to justify the unequal treatment.   Even if valid, there is sufficient evidence in the record to demonstrate appellant's substantial compliance with many of these standards from which the trial court should have concluded that the ordinance and resolution when used to deny the change to tenant ownership, as requested, are unconstitutional as applied to appellant's project.

The standards contained in the ordinance and resolution, even if practical and rational when applied to the construction of a condominium project are clearly illogical, onerous and virtually impossible to meet when imposed on an existing building such as appellant's where a conversion is contemplated.

The wisdom of the ordinance is not a judicial concern, but the reasonable relation of the ordinance to the perceived problems is.   The more fundamental and constitutionally protected the right affected by the ordinance, the stricter the scrutiny and the more clear and direct must be the relationship of the measure and the necessity for it.  Moore v. East Cleveland, supra, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531;  Schaumburg v. Citizens for Better Environ. (1980) 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73;  Schad v. Mt. Ephraim, supra, 452 U.S. 61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671.

 When a city undertakes intrusive and selective regulation of the otherwise lawful use of property, the usual deference to the Legislature is inappropriate.  (Moore v. East Cleveland, supra, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531.)   In such a case it is the city's burden to clearly identify the municipal interest and to justify the ordinance's application to some but not to others yet all of whom are pursuing a right protected by the due process clause of the Fourteenth Amendment.   Such justification requires more than mere “rationality.”

Although the constitutional interests affected under the claimed right of zoning in the three previously cited United States Supreme Court cases were different than at bench (Moore v. East Cleveland, right of relatives to live together under the “extended family doctrine”;  Schaumburg v. Citizens for Better Environ., neighborhood solicitation under “free speech”;  and Schad v. Mt. Ephraim “adult entertainment and nude dancing” under “free speech”), the teachings thereof apply here to a case involving the use of property.   Although free speech cases may be more publicized and may be more dramatic, the protection of a person's property against deprivation without due process is also a constitutional right.   Thus, the summary in Justice Blackmun's concurring opinion in Schad, relating to zoning laws affecting free speech applies equally well to the issue at bench.

“․ [T]he presumption of validity that traditionally attends a local government's exercise of its zoning powers carries little, if any, weight where the zoning regulation trenches on rights of expression protected under the First Amendment.   In order for a reviewing court to determine whether a zoning restriction that impinges on free speech is ‘narrowly drawn [to] further a sufficiently substantial government interest,’ ․ the zoning authority must be prepared to articulate, and support, a reasoned and significant basis for its decision.   This burden is by no means insurmountable, but neither should it be viewed as de minimis.”  (Schad v. Mt. Ephraim, supra, 452 U.S. 61, 77, 101 S.Ct. 2176, 2187, 68 L.Ed.2d 671.)   Paraphrasing Justice Blackmun's further language of Schad and applying it here, it is clear that City of Oxnard may not assume “․ that because the challenged ordinance was intended as a land-use regulation, it need survive only the minimal scrutiny of a rational relationship test, and that once rationality was established, appellants then carried the burden of proving the regulation invalid on [Fourteenth] Amendment grounds․  After today's decision, it should be clear that where protected [Fourteenth] Amendment interests are at stake, zoning regulations have no such ‘talismanic immunity from constitutional challenge.’  [Citation.]”  (Ibid.)

After the ordinance had been enacted, the City Engineer sent the City Council, at its request, a letter, justifying the several requirements applicable to condominium justifying the several requirements applicable to condominium conversions alone.   In a vague, undocumented and unsupported manner the City Engineer stated that purported local experience (without statistics or any evidence) showed that condominium owners owned more automobiles than apartment tenants and were looking for greater amenities, such as more bedrooms, greater storage and patio spaces, thus in his opinion justifying the stricter space requirements imposed on condominiums.   That opinion is addressed more to the real estate market rather than to municipal concerns.   If condominium buyers are willing to buy existing units, the Engineer's belief that some owners may want other amenities is of no concern to the City.   The weakness and complete irrelevance of the City Engineer's conclusions may be illustrated by common knowledge that there is a great difference among condominiums themselves—even contiguous condominiums, whether they be in one building or in adjoining ones.   In fact it is not a rash conclusion to say that some of the individual condominiums which may be constructed in Oxnard per the ordinance may not be as livable as appellant's rental apartments.   Nor has lack of parking in the neighborhood been established legislatively by ordinance and there is no judicial basis to find it as a fact.   The conclusions of a city engineer are no basis for a lawful use of the awesome authority to deprive one of substantial property rights.

 Although a city may rely upon the decision of its engineer in determining whether a particular subdivision map meets the requirements of the Subdivision Map Act and the local general plan, a reviewing court is not bound by the engineer's opinion in determining the reasonableness of the city's exercise of the police power.

In this case, the invalidity of the regulation is patent.   A city may not declare that in order for an existing apartment complex to maintain its use it must forthwith comply with the new minimum parking, minimum patio size, separate entrances, storage areas, minimum unit size, and minimum number of bedrooms per unit requirements.   Numerous cases have struck down zoning ordinances which attempted to exclude and prohibit existing and established uses for business that were not nuisances.  (See, e.g., Jones v. City of Los Angeles (1930) 211 Cal. 304, 295 P. 14;  Walnut Properties, Inc. v. City Council (1980) 100 Cal.App.3d 1018, 1022, 161 Cal.Rptr. 411 [A zoning ordinance may not be used to deprive a person of a vested property right.];  Biscay v. City of Burlingame (1932) 127 Cal.App. 213, 15 P.2d 784;  Paramount Rock Co. v. County of San Diego (1960) 180 Cal.App.2d 217, 225, 4 Cal.Rptr. 317;  Wilkins v. City of San Bernardino (1946) 29 Cal.2d 332, 340, 175 P.2d 542;  McCaslin v. City of Monterey Park (1958) 163 Cal.App.2d 339, 346–347, 329 P.2d 522 [“The rights of the users of property as those rights existed under prevailing zoning conditions are well recognized and have always been protected.”];  Scrutton v. County of Sacramento (1969) 275 Cal.App.2d 412, 420, 79 Cal.Rptr. 872 [“A zoning ordinance may not immediately suppress or force removal of an otherwise lawful business or use.”];   and 5 Witkin, Summary of Cal.Law (8th ed. 1974) Constitutional Law, § 477, pp. 3734–3735 [A landowner is protected against the retroactive application of an ordinance to lawful uses existing on the effective date of the ordinance.].)

3. The Preserving of Low and Moderate Rental—Purpose of the Ordinance

 One purpose and object of the ordinance is to ensure a certain amount of low and moderate rental housing on the market.   The ordinance expressly provides that a conversion permit may be refused if the planning commission finds that the project will remove a substantial amount of low or modest rental housing from the market.   But neither City nor the trial court determined that appellant's conversion would have this effect or that this was one of the five advisory standards which appellant did not meet.   Nonetheless, we do not return this matter for retrial on this issue for the following reasons.

Assuming arguendo that appellant's desire to convert would have the effect of removing low and moderate rentals and further assuming arguendo that providing, or assuring the availability of such rentals is a valid municipal concern, the ordinance still falls short of constitutional standards.

The standard by which the ordinance is tested on review with reference to this assumed-legitimate governmental purpose is still determined by primarily considering its effect on the nature of the right violated—here appellant's non-hazardous, non-injurious use of its property—rather than the power being exercised.   As indicated earlier, this is the command of the United States Supreme Court cases discussed above.   Here, so tested the ordinance still suffers from the infirmities described earlier.

Even though the consideration of rationality takes a back seat to the consideration of the interest affected, the removal-of-moderate-or-low-income-rentals feature of the ordinance at bench is even less related to the accomplishments of the same professed municipal goals and concerns than was the ordinance in City of Santa Barbara v. Adamson, supra, 27 Cal.3d 123, 164 Cal.Rptr. 539, 610 P.2d 436.

The court there held the Santa Barbara ordinance unconstitutionally deprived unrelated tenants the right to live together under the “right of privacy” under the California Constitution noting specifically that the goals were not reasonably achieved and promoted and therefore did not justify the strict limitation.

Although the language of the opinion deals primarily with the right of privacy and the choice of persons with whom to live and with whom to own monthly tenancies, the decision and holding is bottomed in equal part on the right to possess property.   The court's opinion opens with this pronouncement.

“ ‘All people ․ have inalienable rights', proclaims the California Constitution in the first sentence of article I.   The second sentence reads:  ‘Among these [inalienable rights] are enjoying ․ life and liberty, ․ possessing ․ property, and pursuing and obtaining ․ happiness, and privacy.’ ”  (City of Santa Barbara v. Adamson, supra, 27 Cal.3d 123, 126, 164 Cal.Rptr. 539, 610 P.2d 436;  emphasis added.)

The opinion then refers to particulars of the ordinance, its restrictions and three exceptions.   Justice Newman then states the issue there thus:  “Do the ordinance's restrictions, with those three exceptions, respect the commands of the California Constitution concerning people's rights to enjoy life and liberty, to possess property, and to pursue and obtain happiness and privacy?”  (City of Santa Barbara v. Adamson, supra, at p. 129, 164 Cal.Rptr. 539, 610 P.2d 436;  emphasis added.)

The general and specifically stated goals of the Santa Barbara ordinance are remarkably similar to the goals and stated propositions of the ordinance at bench and the Oxnard General Plan to which it refers.¹

Because in the view of the Adamson court, the rights burdened by the ordinance, i.e., privacy and use of property in association with others were fundamental, the court held that the tenuous achievement by the ordinance of the goals listed did not justify the ordinance.   The court held the ordinance could not prohibit the use of property for occupancy by more than five unrelated persons.   Similarly at bench, the right of owners to own the existing apartments in common with others cannot be prohibited because it will remove some low or moderate rentals.   Neither the ordinance nor the evidence before the court demonstrate that either removal or retention of the structure as apartments will increase the areas of valid municipal concern rather than merely change a social or economic condition which is not an area of municipal concern.

If the government has legitimate interest in, and right to make available or to provide, low and moderate rentals, and therefore selects certain property as restricted to that use, the government has, and should exercise the power of eminent domain.   It may thus condemn property for such purposes but must pay the owner.   It cannot be masquerading the ordinance with nice and broad language of improving living standards and general welfare, justify burdening the fundamental right of the use of property by forcing the owner to provide such housing any more than it can justify forcing a private property owner to provide any of the other amenities which persons in the community may want or need.  (City of Santa Barbara v. Adamson, supra, 27 Cal.3d 123, 137, 164 Cal.Rptr. 539, 610 P.2d 436.)

Denial of permission to appellant to convert on the basis that low or moderate rentals will be removed would in effect compel appellant or his successor owners to remain in the apartment rental business.   With the presence of a rent control ordinance, this would result in being compelled to do so entirely on City's terms.   Whatever one may think of the wisdom of rent control, its effect is simply to limit the amount of profit which a person voluntarily engaged in the business of renting housing may realize on his investment.   While rent control may be a lawful exercise of the police power, it does not follow that the property can be limited to, or its owner forced to continue in, such business if the owner desires to get out of it by selling the property.

4. Change of Use

 The unfairness of requiring the owner of a building, which is neither a danger nor a nuisance and which met all requirements when first constructed, to immediately tear down the building or to spend an extraordinarily large amount of money to meet requirements imposed by a change in the law is self evident.   City, of course, does not require that.   But significantly, City does not require new rental apartments to be constructed to meet these conditions although it requires these conditions in construction of new condominiums or in condominium conversion cases.   Nor does City require compliance with the new parking and other requirements described when apartments are sold but continue to be used as rental apartments.   City asserts that the reason why it may require this of condominium converters alone is because the change of form of ownership is a change of “use.”

The conversion of an apartment complex to condominiums does not involve a change in the physical use of the property.   It involves only a change in ownership.   There appears to be no California decision addressing the specific issue of whether in legal contemplation such a conversion not involving a structural alteration or reconstruction of an apartment house constitutes a change in use.   Common sense and fair play seem to make it obvious that it does not and resort to case law would seem unnecessary.   Nonetheless, we note at least four courts in states in the eastern part of the United States where the conversion of apartments into condominiums and stock cooperatives has occurred for a substantially longer period of time than it has in California, have reached the conclusion that such a conversion is a mere change in ownership, rather than a change in occupancy or use, and that such a conversion is therefore not subject to regulation under the zoning laws.  (See, e.g., Miami Beach v. Arlen King Cole Condo. Ass'n. [Fla.App.1974] 302 So.2d 777;  Wentworth Hotel, Inc. v. Town of New Castle (1972) 112 N.H. 21, 287 A.2d 615;  Maplewood Village Ten. Ass'n. v. Maplewood Village (1971) 116 N.J.Super. 372, 282 A.2d 428 [“(I)t is use rather than form of ownership that is the proper concern and focus of zoning and planning regulation.”];   Bridge Park Co. v. Borough of Highland Park (1971) 113 N.J.Super. 219, 273 A.2d 397.)

In Bridge Park Co., supra, the court succinctly stated:  “Defendant attempts to characterize condominium ownership as a ‘use’ of land—i.e., since the property in question is to be ‘used’ as a condominium, the municipality may regulate or prohibit such ‘use.’   It is apparent, however, that after change of ownership as planned, the same buildings will be on the premises in question and the use to which they are put will also remain the same.   We conclude that the word ‘use,’ as contained in the statute above, does not refer to ownership but to physical use of lands and buildings.   A building is not ‘used’ as a condominium for purposes of zoning.”  (Id. at pp. 398–399, emphasis omitted.)

In Miami Beach v. Arlen King Cole Condo. Ass'n., supra, 302 So.2d 777, the acts were almost identical to those in the instant case.   There, a hotel/apartment building was constructed with the proper number of parking spots.   The city later increased the parking requirements and refused to allow the plaintiff to convert the complex to condominiums because of failure to meet the new parking requirements.   The court held that converting from a non-conforming use as apartments to condominiums and changing the type of ownership of real estate upon which a non-conforming use is located would not destroy a valid existing non-conforming use.

We find the reasoning of these decisions persuasive.

By requiring appellant to obtain a special use permit in order to convert the apartment complex to condominiums, City takes the position that the conversion of the dwelling units from apartments to condominiums constitutes a change in use.   This is unreasonable and not within the meaning of the word “use” as contemplated in zoning law.   This is not a case involving change to a use not conforming to that in the particular zone.   Examples of uses that California courts have been found to validly require conditional use permits include:  (1) religious synogogue or church in a residential zone (Stoddard v. Edelman (1970) 4 Cal.App.3d 544, 84 Cal.Rptr. 443;  Matthews v. Board of Supervisors (1962) 203 Cal.App.2d 800, 21 Cal.Rptr. 914;  (2) jet airplane hangars in a residential zone (Mitcheltree v. City of Los Angeles (1971) 17 Cal.App.3d 791, 95 Cal.Rptr. 76);  (3) multiple-residential development in a commercial zone (Concerned Citizens of Palm Desert, Inc. v. Board of Supervisors (1974) 38 Cal.App.3d 257, 113 Cal.Rptr. 328);  (4) a cemetery in residential zone (Essick v. City of Los Angeles (1950) 34 Cal.2d 614, 213 P.2d 492);  and (5) erection of a radio tower (McManus v. KPAL Broadcasting Corp. (1960) 182 Cal.App.2d 558, 6 Cal.Rptr. 441).)   But here whether as apartments or condominium units, the property will continue to be used as dwelling units, within the definition of the same municipal code.   The manner in which title to the property is held has no bearing on the physical use of the units as dwellings.

Respondent cites Clemons v. City of Los Angeles (1950) 36 Cal.2d 95, 222 P.2d 439 in support of its view that local zoning ordinances restricting size of lots and spaces, and regulating access to public streets, density of use and promoting aesthetic values are valid exercises of the police power and not unconstitutional denials of the right to use one's property.  Clemons is entirely distinguishable on the facts.   It was not a condominium case.   There the property owner was attempting to “cut up” a single parcel of realty with bungalow units on it into several substandard size lots with one bungalow on each.   The zoning ordinance passed long after the units had been built required larger-sized lots.   The validity of applying the new zoning ordinance to Clemons was premised on the fact that allowing the very small substandard lots and units that would result from the cutting up of the realty would tend to create slums with no or limited access to public streets, sanitary and utility services, and inadequate garbage disposal and incinerator facilities.   No such problems exist here.   The apartment building at bench is well built, and does not present slum, fire, traffic, health or other problems.

Also, in Clemons there was a span of some 25 years or more between the time the apartment units were built and the date of the request to cut up the lot on which they stood.   It is reasonable to presume that in such a period of time there were many changes in urban life in the city and an increase in the demands on municipal services.   The facts, problems and issues at bench are totally different than in Clemons.   That case is inapplicable here.   The holding of Clemons is limited to the situation where the substandard size lots actually create or increase additional problems of providing police, fire and other vital municipal services.   It does not apply to prevent transferring ownership of lots or units which existed before a new ordinance but were technically thereafter non-conforming in size but where such feature does not create or add to such problems.  (Morris v. City of Los Angeles (1953) 116 Cal.App.2d 856, 254 P.2d 935.)   At bench appellant built in good faith according to the requirements in effect in 1978–1979.   It does not seem likely that the method of providing municipal services nor neighborhood needs changed so drastically in the two years between the completion of construction and the time of the request to permit condominium conversion as to justify the more stringent requirements imposed on condominiums only and not on apartments.

The judgment denying appellant's petition for writ of mandate is reversed and the matter remanded to the trial court with directions to issue its writ of mandate as prayed for by appellant.

I concur in the judgment.

I believe that on a record devoid of any empirical evidence justifying the exercise of police power but based solely on the speculations of City's engineer, City assumes the permit sought by appellant may be denied.   On the facts of this case such denial, I think, is an abuse of police power.

It is clear from the authorities cited by my colleagues, first, that no ordinance like that in question could be applied retroactively to an existing but nonconforming use of property and, second, that no change of use sufficient to alter the rule against retroactive application inheres in the conversion of a residential apartment dwelling to a residential condominium or stock cooperative.

FOOTNOTES

1.   “The over-all intent of the ordinance, according to section 28.01.001, is ‘to serve the public health, safety, comfort, convenience and general welfare and to provide the economic and social advantages resulting from an orderly planned use of land resources, and to encourage, guide and provide a definite plan for future growth and development of said City.’   By themselves those words hardly justify the restrictions that appellants contest here.  [¶]  A more specific intent, underlying the setting-up of two-family and multiple-family zones, as well as ‘garden apartment,’ ‘planned residence,’ and ‘planned unit’ developments, is ‘to establish, maintain and protect the essential characteristics of the district, to develop and sustain a suitable environment for family life, and to prohibit activities of a commercial nature and those which would tend to be inharmonious with or injurious to the preservation of a residential environment.’ ”  (City of Santa Barbara v. Adamson, supra, 27 Cal.3d 123, 131, 164 Cal.Rptr. 539, 610 P.2d 436.)

BEACH, Associate Justice.

COMPTON, J., concurs.