CITY OF SANTA BARBARA v. ADAMSON (1979)

The City of Santa Barbara (City) has a comprehensive zoning ordinance which, insofar as is relevant here, divides the City into 25 zones, six of which are designated single family residential. The latter are in turn sub-designated according to lot area, frontage and yard requirements. We are concerned here with a zone designated as single family residential with one acre sites.

The ordinance defines a “family” as “an individual or two or more persons related by blood, marriage or legal adoption living together as a single housekeeping unit in a dwelling unit.” Alternatively, a “family” is defined as “a group of not to exceed five (5) persons, excluding servants, living together as a single housekeeping unit in a dwelling unit.”

In order to alleviate unnecessary hardships, adjust to practical difficulties or avoid results inconsistent with the intent of the ordinance, a procedure for obtaining a conditional use permit or a variance from the requirements of its provisions is provided.

City commenced this action to enforce compliance with the ordinance by Beverly Adamson, the owner of a 24 room house located in the above described zone. Other defendants are five persons who, along with Adamson and six or seven other persons, reside in the house. None are related in any way nor have any of them applied for a variance or conditional use permit.

In short, Adamson admittedly rents living accommodations to persons in a number which exceeds the permissible limits of the ordinance. City sought a mandatory injunction to reduce the number of persons residing on the premises.

The trial court first issued a temporary restraining order. Defendants noticed an appeal from that order. Subsequently that court issued a preliminary injunction ordering defendants to vacate the premises. Defendants noticed an appeal from that order. The appeal from the temporary restraining order is now moot.

The stated objectives of the ordinance, as pertains to the single family zones, are to limit density, to maintain the essential characteristics of a family life environment and exclude commercial activity which is unharmonious with such an environment.

Essentially the defendants concede that those are the objectives and that they are proper objectives to be achieved by a form of land use control. Defendants' objections to the ordinance focus on their perception of a discrimination against unmarried persons living together.

Defendants argue that they have, under both the federal and state Constitutions, a guaranteed right to privacy and free association which embraces their right to select with whom they live. As to defendant Adamson, the owner of the property, it is contended that to deny her the right to take into her home whomever she chooses, amounts to inverse condemnation.

The argument goes that, since defendants are asserting fundamental rights, the burden is on the City to show that a compelling governmental interest underlies the impingement of those rights. According to defendants the City has failed to do this because the objectives of the City can more effectively be achieved by restrictions which are not based on a distinction between households of related and unrelated persons.

For its part, the City rests its case on a presumption of constitutionality, the well-established acceptance of zoning as a valid exercise of the police power, the deference of the courts to legislative prerogative so long as the alleged regulation bears a reasonable and rational relationship to the objective of the regulation and defendants' failure to exhaust the administrative remedies available to them.

For reasons not readily apparent to us the City would delay appellate determination of the constitutionality of the ordinance. The City argues that the failure to exhaust administrative remedies precludes defendants from challenging the constitutionality of the ordinance. Further, they ask us to apply the usual test of review for a preliminary injunction and confine our decision to a determination of the likelihood of the City's ultimately prevailing and who will suffer the greater injury by the upholding or failure to uphold the issuance of the preliminary injunction. (Continental Baking Co. v. Katz, 68 Cal.2d 512, 67 Cal.Rptr. 761, 439 P.2d 889; State Bd. of Barber Examiners v. Star, 8 Cal.App.3d 736, 87 Cal.Rptr. 450; Associated Cal. Loggers, Inc. v. Kinder, 79 Cal.App.3d 34, 144 Cal.Rptr. 786.)

In adopting this latter argument, the City has failed to “think through” its position. Laying aside the question of the City's potential for success an issue which itself would require us to examine, at least facially, the constitutionality of the ordinance it seems clear that were we to narrow the scope of our review we would be compelled to hold that the status quo of the defendants' continued residence at the location is disturbed by the temporary injunction and that defendants would suffer the greater hardship by such action. Forcing defendants into the housing market under today's conditions is a drastic measure especially if their attack on the ordinance is ultimately vindicated.

As to City's other contention, case law has recognized the requirement of exhaustion of administrative remedies in cases involving constitutional attacks on zoning ordinances. (City of Chico v. First Ave. Baptist Church, 108 Cal.App.2d 297, 238 P.2d 587; Metcalf v. County of Los Angeles, 24 Cal.2d 267, 148 P.2d 645; Mountain View Chamber of Commerce v. City of Mountain View, 77 Cal.App.3d 82, 143 Cal.Rptr. 441; Igna v. City of Baldwin Park, 9 Cal.App.3d 909, 88 Cal.Rptr. 581.)

In each of the cases cited, however, the court assumed the facial constitutionality of the ordinance under attack and was dealing with a claim of unconstitutional application to a particular situation. Even under those latter circumstances the rule is not hard and fast. (Ogo Associates v. City of Torrance, 37 Cal.App.3d 830, 112 Cal.Rptr. 761.)

Where, as here, the attack is on the constitutionality of the basic structure of the ordinance, a person aggrieved thereby cannot be required to avail himself of the remedial provisions which are a part of that very ordinance before seeking a judicial declaration of its invalidity. (Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162.)

Resolution of this appeal thus requires us to examine defendants' claim that the City's ordinance is unconstitutional. The basic underpinning of the trial court's order for a temporary injunction was a determination that the ordinance was and is constitutional. We are of the opinion that even though this is an appeal from a preliminary injunction, the disposition of the crucial issue in the case is ripe for determination.

The decision of the United States Supreme Court in Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797, is a complete answer to defendants' claim that fundamental constitutional rights are impinged by the ordinance. In that case the court upheld, against a similar argument, a zoning ordinance limiting land use to single family dwellings by prohibiting occupancy of a dwelling by more than two unrelated persons although the ordinance placed no such limitation on the number of occupants related by blood, marriage or adoption.

Our highest court declared that such a restriction involved no “fundamental” right of association or privacy under the United States Constitution. Also, it has long been held that reasonable zoning regulations do not amount to inverse condemnation. (Euclid v. Ambler Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; HFH, Ltd. v. Superior Court, 15 Cal.3d 508, 125 Cal.Rptr. 365, 542 P.2d 237.)

California's constitutional guarantee of equal protection of the law (art. I, s 7) is no broader than the provisions of the Fourteenth Amendment to the United States Constitution, (McGlothlen v. Department of Motor Vehicles, 71 Cal.App.3d 1005, 140 Cal.Rptr. 168) nor is California's specific constitutional protection of privacy (art. I, s 1) of any comfort to defendants. (See the stated purpose of the provision as set forth in White v. Davis, 13 Cal.3d 757, at 767, 120 Cal.Rptr. 94, 533 P.2d 222.)

Our analysis of the ordinance then is, as in Village of Belle Terre v. Boraas, supra, conducted on the basis of determining whether the regulation is reasonable as opposed to arbitrary and whether it bears a reasonable, rational relationship to permissible governmental objectives. (Lockard v. City of Los Angeles, 33 Cal.2d 453, 202 P.2d 38; Ensign Bickford Realty Corp. v. City Council, 68 Cal.App.3d 467, 137 Cal.Rptr. 304.) As noted above, defendants concede the legitimacy of the objectives of the ordinance. They challenge the method of achievement.

The fact that the ordinance permits five unrelated persons to reside in a single dwelling belies defendants' claim of invidious discrimination against unmarried persons.

Further, we are unpersuaded by defendants' resort to extreme examples of possibilities to demonstrate the ordinance's lack of relationship to its stated goal. Whether the ordinance would permit 15 distant cousins to reside in a two bedroom house while prohibiting two widowed mothers, each with two children, from residing in a ten bedroom mansion, or whether seven related members of “Murder Incorporated” could reside in a single dwelling while seven unrelated Nobel Prize Winners could not, is beside the point.

The question is whether the City has adopted a method of limiting density and preserving the quality of life which appears reasonably calculated to accomplish those ends in the broad sense notwithstanding the fact that certain isolated anomalous results are possible. The requirement that persons be related by blood, marriage or adoption has a tendency to limit the number of persons who can reside in a single dwelling even though no finite number is prescribed. The potential group is necessarily smaller than the populace at large.

Further, a familial relationship tends generally, though not in every case, to enhance the tranquility and environmental values compatible with the quality of a non-urban residential area.

“The regimes of boarding houses, fraternity houses, and the like present urban problems. More people occupy a given space; more cars rather continuously pass by; more cars are parked; noise travels with crowds.” (Village of Belle Terre v. Boraas, supra, 416 U.S. at p. 9, 94 S.Ct. at p. 1541.)

Nor can it be said that the limitation of five, which applies to persons not related to each other, is unreasonable. “. . . every line drawn by a legislature leaves some out that might well have been included. That exercise of discretion, however, is a legislative, not a judicial, function.” (Belle Terre, supra, at p. 8, 94 S.Ct. at p. 1541.)

On its face the City's presumptively valid ordinance is reasonable and bears a logical relationship to the objectives of modern zoning practices. It therefore passes constitutional muster. The question of the constitutionality of applying the ordinance to these specific defendants remains at large. Defendants are presently foreclosed from judicial consideration of that claim by their failure to seek a variance or conditional use permit from the City and their failure to show that such an effort would be fruitless or preordained to failure. (Compare Ogo Associates v. City of Torrance, supra.)

The appeal from the order granting a temporary restraining order is dismissed. The order granting a preliminary injunction is affirmed.

COMPTON, Associate Justice.

ROTH, P. J., and BEACH, J., concur.