LOCKARD v. CITY OF LOS ANGELES (1948)

This is an appeal by defendant municipality from a judgment, after trial before the court without a jury, declaring invalid, in so far as they apply to properties of plaintiffs and others similarly situated, certain provisions of a zoning ordinance of the city which limit the use of said properties to certain commercial purposes and enjoining the enforcement of said provisions as against plaintiff Lockard; also declaring the rights of plaintiffs to use their properties for light industrial purposes as permitted by other provisions of said ordinance and enjoining the city from interfering in the use by plaintiffs of their properties for such light industrial purposes.

The essential facts are these:

By ordinance No. 90,500, effective on June 1, 1946, defendant municipality adopted a comprehensive zoning plan whereby the entire city was divided into many districts, each of which was assigned to one of sixteen zones established by the ordinance. Under this ordinance Jefferson Boulevard, an important thoroughfare of the city running in an easterly-westerly direction, was divided into several districts which were assigned to various zones. A portion of Jefferson Boulevard for a distance of several miles easterly of Vineyard Avenue was placed in C2 zone, being one of four commercial zones established by the ordinance, and providing for what was known as the ‘service type’ of commercial use. In a portion of this district Jefferson Boulevard is intersected by Crenshaw Boulevard and proceeding westerly therefrom by Vineyard, La Brea, Sycamore and Cochrane Avenues respectively.

The portion of Jefferson Boulevard lying westerly of Vineyard Avenue and extending to Sycamore Avenue was placed in M1 zone, being designated a ‘light industrial zone.’ Herein certain light manufacturing uses are permitted. This district extended for approximately one-half mile westerly of Vineyard Avenue.

The present action was instituted by some of the owners and lessees of that portion of Jefferson Boulevard lying between Crenshaw Boulevard on the east and Vineyard Avenue on the west. The trial court found: ‘That Jefferson Boulevard from Crenshaw Avenue to La Brea Avenue is suitable only for light manufacturing purposes such as is permitted in Zone ‘M–1’ of the Zoning Ordinances of the City of Los Angeles, and defendants, and each of them, should be enjoined and restrained from interfering with the use of said property for light industrial purposes such as is permitted under the Zoning Ordinances in Zone ‘M–1.”^** (Italics added.)

Pursuant to the foregoing finding the trial court entered a judgment containing the provisions hereinbefore mentioned.

This is the sole question necessary for us to determine:

(a) Was there substantial evidence to sustain the foregoing finding, and (b) did such finding support the judgment entered herein?

This question must be answered in the affirmative.

(a) Facts

In the instant case the preponderance of evidence was to the effect that the property in question was unsuitable for the purposes to which the ordinance limited its use, and was suited only for light manufacturing purposes.

Ernest R. Smith, an authority on zoning and a former member of the planning commission of Los Angeles, and William M. Thorpe, director and manager of the city planning commission of the city of Los Angeles for seven years, both gave testimony which alone would have supported the finding of fact set forth above. In addition by stipulation of counsel the trial judge ‘viewed’ the property in question. This view of itself constituted independent evidence which would sustain the questioned finding of fact. (Ethel D. Co. v. Industrial Acc. Comm., 219 Cal. 699, 704, 28 P.2d 919; Rowland v. City of Pomona, 82 Cal.App.2d 622, 186 P.2d 447; Gastine v. Ewing, 65 Cal.App.2d 131, 141, 150 P.2d 266; McManus v. Otis, 61 Cal.App.2d 432, 446, 143 P.2d 380.)

(b) Law

The law is settled in this state that if the use of property is so restricted that it can be said that the regulation amounts to a confiscation of the property, the restrictive ordinance is invalid and unconstitutional because the property is taken without due process of law. (Bank of American Nat. Trust & Savings Ass'n v. Town of Atherton, 60 Cal.App.2d 268, 272, 140 P.2d 678.)

Conclusion

Since the trial court's finding that the property here involved was suitable only for light manufacturing purposes, which finding was sustained by substantial evidence, applying the rule of law above stated it necessarily follows that the ordinance which prohibited the use of the property for such purposes was arbitrary, unreasonable, and constituted the taking of plaintiffs' property without due process of law. Hence the judgment of the trial court was correct.

Authorities of Appellant

Defendant relies principally on the cases of Zahn v. Board of Public Works, 195 Cal. 497, 234 P. 388; Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479, and Wilkins v. City of San Bernardino, 29 Cal.2d 332, 175 P.2d 542. It may be conceded, as plaintiffs do, that each of the cases is an authority supporting the propositions urged by defendant. However, the factual situation in such cases is clearly distinguishable from the facts in the present case. In none of the cited cases was there a finding of the trial court that the zoned property was ‘suitable only’ for a purpose for which its use was prohibited by the ordinance under consideration.

In each of the cited cases the finding of the lower court was that the property was suitable for the purpose for which it was zoned. This difference in the factual situation existing in the cited cases and the instant case makes it unnecessary to discuss the arguments predicated on such cases advanced by defendant.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  It is immaterial that this finding of fact is found among the conclusions of law, as it is a finding of fact and will be so treated by this court. (Linberg v. Stanto, 211 Cal. 771, 776, 297 P. 9, 75 A.L.R. 555; Gossman v. Gossman, 52 Cal.App.2d 184, 191, 126 P.2d 178.)

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.