CITY OF CHULA VISTA v. PAGARD (1979)

Kenneth L. Pagard, pastor of the First Baptist Church of Chula Vista, and certain members of his church congregation conduct their lifestyle, as a matter of religious belief, in a manner requiring a “communal living arrangement.” Pagard and his co-defendants are heads of 12 such religious family households located in Chula Vista.

Plaintiff City of Chula Vista (Chula Vista) sought an injunction to abate as a nuisance certain of these religious family households consisting of more than three and up to twenty unrelated individuals living in a single-family dwelling in the R-1 zone in violation of Chula Vista zoning ordinances.¹

Defendants answered and cross-complained seeking to enjoin the enforcement of the disputed zoning ordinances and to compel the city council of Chula Vista to reverse its decision declaring these religious family households to be a public nuisance. The parties filed cross-motions for summary judgment. After hearing, the trial court, relying upon Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797, denied defendants' but granted Chula Vista's motion on the premise that no fundamental constitutional right was infringed by the zoning laws and that the determination of the number of unrelated persons living within a single-family dwelling in an R-1 zone was a legislative matter. The court found, on undisputed evidence, defendants' households constituted a public nuisance and ordered them to come into full compliance with the Chula Vista ordinances governing R-1 zones within 60 days from the date of the judgment.

Defendants appeal contending the Chula Vista ordinance restricting the number of unrelated persons that can live together in a single household in an R-1 zone infringes constitutionally protected religious rights, rights to travel, rights to privacy and constitutes a denial of equal protection.

I

The Chula Vista First Baptist Church, since 1969, has maintained communal households in single-family residences in Chula Vista's R-1 zone. As of November 1974, there were 12 such communal households with occupancy varying from 4 to 20 unrelated persons. These 12 households had 43 cars for an average of 3.2 automobiles per household and 3.4 persons per car.

During this period, Chula Vista had, by ordinance, set aside its R-1 zone for the purpose of promoting and encouraging a suitable environment for family life, and the Chula Vista ordinance specifically defines family as an individual; or two or more persons, all of whom are related by blood, marriage or adoption; or a group of not more than three persons, excluding servants, who need not be related living in a dwelling unit as a single housekeeping unit and using common cooking facilities. (Code s 19.04.092.)

Chula Vista had delayed action to enforce the ordinance against these communal units in R-1 zones due to the constitutional questions raised in a case then pending in the United States Supreme Court involving a similarly worded ordinance adopted by the Village of Belle Terre, New York. In 1974, the United States Supreme Court upheld the validity of the Belle Terre ordinance in Village of Belle Terre v. Boraas, supra, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797. After the Belle Terre decision but before the initiation of these legal proceedings, Chula Vista considered a proposal to allow communal households in residential zones. A land use study was conducted which culminated in a planning department report concluding communal households, due to their large number of residents, are more appropriate in R-3 rather than R-1 zones.

On May 14, 1975, a final environmental impact report was submitted by the environmental review committee and the planning department of the City of Chula Vista. This report concluded the establishment of communal households in the R-1 zone of Chula Vista subject to proper controls would have no apparent significant adverse impacts on the city. The slight increase in traffic noise and population could be controlled at a level which is commonly associated with residential neighborhoods. The council also had before it the report of Mr. Lu Quinny, Chief Associate Planner in charge of investigating the extended family religious lifestyles within the R-1 zones of Chula Vista, who found there was substantial community opposition to communes based primarily upon “unarticulated feelings and fears.” Mr. Quinny could see no difference in land use impact between a related family of 10 and an unrelated family of 10 and concluded that he had not discovered any empirical evidence to justify denial of communal households as a conditional use. Following this study, the Chula Vista City Council authorized households in R-3 zones as a conditional use, but continued its restriction in R-1 zones.

Defendants were given six months to come into compliance with the city code. During this six-month period, defendants applied for and obtained a conditional use permit to maintain their communal households in Chula Vista's R-3 zone. Defendants, however, continued to operate their communal households in R-1 zone after the six-month grace period. After noticed hearing, the Chula Vista City Council found the various communes within the R-1 zones were in violation of the city's zoning ordinances, declared them to be a public nuisance and authorized this court action.

II

Chula Vista Municipal Code section 19.24.010 sets forth the purpose of its R-1 zone: “(T)o stabilize and protect the residential characteristics of the area so designated and to promote and encourage a suitable environment for family life. The R-1 zone is basically intended to provide communities primarily for single-family detached homes and the services appurtenant thereto.” Section 19.04.092 of the Chula Vista Code defines family to mean “an individual; or two or more persons, all of whom are related by blood, marriage or adoption; or a group of not more than three persons, excluding servants, who need not be related, living in a dwelling unit as a single housekeeping unit and using common cooking facilities.” Section 19.24.020 sets forth the principal permitted uses in the R-1 zone which is a single-family dwelling on any lot.

It is defendants' contention that these ordinances as a matter of statutory construction and interpretation permit any number of unrelated individuals to occupy a dwelling in an R-1 zone. In support of this proposition, they point to the definition of a single-family dwelling as found in section 19.04.078 which defines a single-family dwelling as “a building designed for or used exclusively for residence purposes by one family or housekeeping unit.” The defendants argue that the phrase “or housekeeping unit” is to be differentiated from housekeeping unit with its numerical limitation of three unrelated individuals as found in section 19.04.092.

This contention flies in the face of these fundamental rules of statutory construction. A specific provision of a statute should be construed with reference to the entire statutory system of which it is a part, in such a way that various elements of the overall scheme are to be harmonized. (Bowland v. Municipal Court, 18 Cal.3d 479, 489, 134 Cal.Rptr. 630, 556 P.2d 1081; Piazza Properties, Ltd. v. Dept. of Motor Vehicles, 71 Cal.App.3d 622, 633, 138 Cal.Rptr. 357.) Significance should be given if possible to every word, phrase, sentence and part of an act in pursuance of the legislative purpose. (Turner v. Board of Trustees, 16 Cal.3d 818, 826, 129 Cal.Rptr. 443, 548 P.2d 1115.)

If defendants' assertion is correct, then any number of unrelated persons could occupy a single-family dwelling. The facile argument that one is unable to distinguish between 10 related persons and 10 unrelated individuals living in the same household fails to take into account the reality of the high degree of improbability, although not impossibility, of families of 10, 20 or 30 or 100 seeking to live in a single household in an R-1 zone. (Palo Alto Tenants Union v. Morgan (N.D.Cal.1970) 321 F.Supp. 908, 912.) Further, such an interpretation is in direct conflict with the stated purpose of the R-1 zoning “to promote and encourage a suitable environment for Family life.” “Family” is defined as persons related by blood, marriage or adoption. Such definition is reasonably calculated to keep population density at such level so as to attain the stated objectives. Furthermore, the limiting of “housekeeping unit” to the definition as set forth in section 19.04.092 does regulate the type of structure which may be built in an R-1 zone. The interpretation sought by defendants would effectively negate an attempt at city planning through control of population densities, lot sizes, building height, and ground coverage limitations. Thus the construction sought is totally at odds with the Chula Vista ordinance scheme aimed at promoting and encouraging an environment suitable for “family” life.

Defendants cite the cases Brady v. Superior Court, 200 Cal.App.2d 69, 19 Cal.Rptr. 242; Missionaries of Our Lady of La Salette v. Village of Whitefish Bay, 267 Wis. 609, 66 N.W.2d 627; and Robertson v. Western Baptist Hospital (Ky.) 267 S.W.2d 395, in support of their position. Each of these cases is inapposite to the present case.

The Missionaries and Robertson cases involved ordinances which defined “family” differently than Chula Vista. In Missionaries, the Village of Whitefish Bay, Wisconsin, defined “family” as “One or more individuals living, sleeping, cooking or eating on premises as a single housekeeping unit.” (Missionaries of Our Lady of La Salette v. Village of Whitefish Bay, supra, 267 Wis. at pp. 614-615, 66 N.W.2d at p. 630.) In Robertson, the City of Paducah, Kentucky, defined “family” as “One or more persons living as a single housekeeping unit, as distinguished from a group occupying a hotel, club, fraternity or sorority house. A family shall be deemed to include servants.” (Robertson v. Western Baptist Hospital, supra, at p. 396.) Patently these definitions are markedly different from Chula Vista's Municipal Code section 19.04.092. When a legislative body enacts a statute which prescribes the meaning to be given to particular terms used by it, that meaning is binding upon the courts. (Rideaux v. Torgrimson, 12 Cal.2d 633, 636, 86 P.2d 826.) The Wisconsin and Kentucky courts were bound by a totally different definition given the term “family.” Such holdings do not constitute persuasive authority.

Further, it is noteworthy that the Missionaries Court went on to say: “Had it been the pleasure of the legislative body when defining the word ‘family,’ to have excluded in the district any dwelling use of premises there situated, by a group of individuals not related to one another by blood or marriage, it might have done so.” (Missionaries of Our Lady of La Salette v. Village of Whitefish Bay, supra, 267 Wis. at p. 615, 66 N.W.2d at p. 630.)

Here, Chula Vista has done exactly what the Wisconsin court said the Village of Whitefish Bay might have done.

Brady v. Superior Court, supra, 200 Cal.App.2d 69, 19 Cal.Rptr. 242, involved an ordinance of the City of Atherton, California. Atherton, unlike Chula Vista, did not define the term “family.” The issue in the Brady case was the meaning of the phrase “single-family dwelling” and the court found this phrase to be synonymous with “single housekeeping unit.” Again, the court noted that if Atherton wanted to limit by number the persons who may live in a single-family dwelling, it has the prerogative of enacting a precise ordinance. The court went on to list a number of zoning regulations of California cities and counties which define the word “family” in single-family residential districts, many of which contain a numerical restriction. (Brady, supra, at p. 80, 19 Cal.Rptr. 242.) Chula Vista has legislated as the Brady court recommended in that it has set forth numerical restrictions on unrelated individuals in its definition of the word “family.” We conclude the Chula Vista ordinances do not lend themselves to any rational construction authorizing the communal type “family” in R-1 zones.

III

Defendants next contend that Chula Vista zoning ordinances infringe upon their right of free exercise of their religious beliefs in violation of the First and Fourteenth Amendments to the United States Constitution and the California Constitution, article I, section 4.

The First Amendment of the United States Constitution provides in pertinent part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . .” Article I, section 4 of the California Constitution provides that the free exercise and enjoyment of religious profession and worship is guaranteed without discrimination or preference. There is no shadow of doubt but that freedom of religion is protected by the First Amendment. It is also among the fundamental liberties protected by the due process clause of the 14th Amendment from impairment by the state. (Gabrielli v. Knickerbocker, 12 Cal.2d 85, 82 P.2d 391; Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228.) Freedom of religion is a basic right. (Ex Parte Burke, 59 Cal. 6.) It occupies a preferred position among the constitutional rights of an individual. The First Amendment provisions prohibiting any abridgment of religious freedom and prohibiting all laws respecting an establishment of religion are to be broadly interpreted. (Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711.) The overall purpose of the First Amendment's provision respecting freedom of religion is to insure that no religion is sponsored or favored, none commanded, none inhibited. (Walz v. Tax Commission of City of New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697.) Thus the Constitution assures a generous immunity to the individual from imposition of penalties for offending in the course of his own religious activities the religious views of others, whether they are a minority or of those who are dominant in government or society. (Minersville School Dist. v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375.)

The test in determining whether a legislative enactment violates the establishment clause of the First Amendment requires a close scrutiny of the very purpose and primary effect of the enactment. If either results in the advancement or inhibition of religion, then the enactment exceeds the scope of the legislative power as circumscribed by the First Amendment. (School District of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844; Braunfeld v. Brown, 366 U.S. 599, 607, 81 S.Ct. 1144, 6 L.Ed.2d 563.)

Further, it must be readily conceded religious instruction, worship in private homes are as much protected as any other activity carried on in private homes. (Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213.)

As constitutional support for the challenged zoning ordinances, Chula Vista cites Village of Belle Terre v. Boraas, supra, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797, where the United States Supreme Court upheld the authority of local communities to exclude groups of unrelated householders (a fraternity group) from single-family dwelling zones. In Belle Terre, the Supreme Court stated at page 9, 94 S.Ct. at page 1541:

“A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one within Berman v. Parker (348 U.S. 26, 75 S.Ct. 98, 102, 99 L.Ed. 27). The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.”

In Palo Alto Tenants Union v. Morgan, supra, 321 F.Supp. 908, affmd. 487 F.2d 883 (9th Cir. 1973) and cert. den. 417 U.S. 910, 94 S.Ct. 2608, 41 L.Ed.2d 214, the federal court upheld the constitutionality of a Palo Alto ordinance limiting single-family dwellings to residency by related families and not more than four unrelated individuals against the claim of communal living groups composed of more than four unrelated persons. The Palo Alto Tenants Union asserted a fundamental right to “free association” and that the challenged zoning ordinances infringed that right, therefore could be upheld only on a showing of a “compelling state interest.” (Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600.) The court in Palo Alto stated:

“Plaintiffs are unquestionably sincere in seeking to devise and test new life-styles, but the communes they have formed are legally indistinguishable from such traditional living groups as Religious communities and residence clubs. The right to form such groups may be constitutionally protected, but the right to insist that these groups live under the same roof, in any part of the city they choose, is not. To define ‘association’ so broadly, and to apply Shapiro (Shapiro v. Thompson, supra) so widely, would be to dilute the effectiveness of that special branch of jurisprudence which our tradition has developed to protect the truly vital interests of the citizenry.” (Id., at pp. 911-912; italics added.)

IV

Defendants are quick to point out that neither Belle Terre nor the Palo Alto case involve religious communes, but rather secular (fraternity-hippie) communes. Therefore, the First Amendment right of freedom of religion was not involved. The Supreme Court in Belle Terre concluded that no fundamental rights were present and therefore used the rational basis test for determining the constitutionality of the ordinance. Defendants urge that the challenged ordinances are not subject to that rational basis test since it is clear that defendants' Fundamental right to freedom of religion is being infringed by the Chula Vista enforcement of their zoning ordinance. Thus, it is argued the burden shifts to Chula Vista to prove a compelling state interest and that burden is not met by reference to the decisions in Belle Terre or Palo Alto.

The initial question here is whether the zoning ordinance, sought to be applied to a religious commune, which places a limitation on the number of unrelated persons who may cohabit in a single dwelling house in an R-1 zone is an infringement, an inhibition upon that conceded fundamental right of free exercise of religion. If the zoning ordinances do infringe inhibit, advance on such a fundamental right, then strict scrutiny is required to be employed and the city would have to demonstrate some compelling state interest to support the zoning ordinances. (Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965.) If not, the traditional “rational” test applies. (Belle Terre, supra, 416 U.S. at p. 8, 94 S.Ct. 1536.)

There is no question but that defendants are free to believe as they see fit concerning communal living practices and to put such belief into practice. However, the core question is whether a zoning limitation on the area of a city where such communal living practices may be followed is an infringement upon their religious belief.

The point of beginning in analyzing the contention of an infringement on the free exercise of religion, is an examination of the degree of abridgment of religious freedom that is involved in enforcing the Chula Vista zoning ordinances. In People v. Woody, the California Supreme Court (61 Cal.2d 716, p. 725, 40 Cal.Rptr. 69, p. 76, 394 P.2d 813, p. 820) made this classic distinction between legal restraints on polygamy and the blanket prohibition of the use of peyote:

“Polygamy, although a basic tenet is the theology of Mormonism, is not essential to the practice of the religion; peyote, on the other hand, is the Sine qua non of defendants' faith. It is the sole means by which defendants are able to experience their religion; without peyote defendants cannot practice their faith.”

And the United States Supreme Court in Braunfeld v. Brown, supra, 366 U.S. 599, 605-606, 81 S.Ct. 1144, 1147, 6 L.Ed.2d 563, made a similar distinction. The Supreme Court stated:

“It is to be noted that, in the two cases just mentioned (polygamy and sale by minor of religious tracts in a public place), the religious practices themselves conflicted with the public interest. In such cases, to make accommodation between the religious action and an exercise of state authority is a particularly delicate task, . . . because resolution in favor of the State results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution.

“But, again, this is not the case before us because the statute at bar does not make unlawful any religious practices of appellants; The Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive. Furthermore, the law's effect does not inconvenience all members of the Orthodox Jewish faith but only those who believe it necessary to work on Sunday. (Fn. omitted.) And even these are not faced with as serious a choice as forsaking their religious practices or subjecting themselves to criminal prosecution. Fully recognizing that the alternatives open to appellants and others similarly situated retaining their present occupations and incurring economic disadvantage or engaging in some other commercial activity which does not call for either Saturday or Sunday labor may well result in some financial sacrifice in order to observe their religious beliefs, still the option is wholly different than when the legislation attempts to make a religious practice itself unlawful.” (Ibid.; italics added.)

Here the zoning ordinances do not “make unlawful” or prohibit any religious practice of defendants. Nor can the practice of communal living be said to be the sine qua non of defendants' faith; but rather, it partakes of a secular nature, although sincerely believed by defendants to be affected with a religious character.

“Police measures may be adopted if they do not affect merely beliefs and especially if the actions so affected are not of a religious character, even though conscientiously believed to be so, but are rather of a purely secular nature.” (16 Am.Jur. Constitutional Law, s 340, p. 656; fn. omitted.)

It must be readily conceded: “Certain aspects of religious exercise cannot, in any way, be restricted or burdened by either federal or state legislation. Compulsion by law of the acceptance of any creed or the practice of any form of worship is strictly forbidden. The freedom to hold religious beliefs and opinions is absolute. (Citations.) . . . P However, the freedom to act, even when the action is in accord with one religious convictions, is not totally free from legislative restrictions. (Citation.) As pointed out in Reynolds v. United States (98 U.S. 145, at page 164, 25 L.Ed. 244) . . ., legislative power over mere opinion is forbidden but it may reach people's actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one's religion.” (Braunfeld v. Brown, supra, 366 U.S. 599, 603, 81 S.Ct. 1144, 1146, 6 L.Ed.2d 563.)

This freedom to believe guaranteed by the First Amendment is absolute; freedom to act cannot, in the nature of things, be absolute. Conduct remains subject to regulation for the protection of society.

The ordinance here does not prohibit or require the holding of religious belief or opinion. It is at most an incidental restraint on a practice of secular hue that impinges upon and must be weighed against a strong community interest underpinning reasonable zoning regulations.

Furthermore, if we assume that communal living were indeed at the theological heart of defendants' religious beliefs, restrictions of appropriate nature, definite and narrowly drawn are authorized as to the time, place and manner of expressing these beliefs or practices. (Dulaney v. Municipal Court, 11 Cal.3d 77, 85, 112 Cal.Rptr. 777, 520 P.2d 1; Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 152, 89 S.Ct. 935, 22 L.Ed.2d 162; Kash Enterprises, Inc. v. City of Los Angeles, 19 Cal.3d 294, 299, 138 Cal.Rptr. 53, 562 P.2d 1302.) The challenged ordinances here do no more than regulate place and manner for defendants' exercise of their communal lifestyle.

Moreover an “incidental” infringement even upon the exercise of religion may pass constitutional muster. Braunfeld v. Brown, supra, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563, upheld the Pennsylvania Sunday law against a free exercise objection by Sabbatarians. Braunfeld factually represented only an “incidental” infringement of religious freedom contrasted with a strong state interest in providing one uniform day of rest for all workers. That secular objective could be achieved only by declaring Sunday to be that day of rest.

The Supreme Court observed where “the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.” (Braunfeld, supra, at p. 607, 81 S.Ct. at p. 1148.

We conclude a legislative body may “regulate conduct for the protection of society, and insofar as their regulations are directed towards a proper end and are not unreasonably discriminatory, they nay indirectly affect religious activity without infringing the constitutional guarantee.” (Cantwell v. State of Connecticut, supra, 310 U.S. 296, 303-304, 60 S.Ct. 900, 84 L.Ed. 1213; Perez v. Sharp, 32 Cal.2d 711, 713, 198 P.2d 17, 18.) The religious beliefs of the defendants in this case do not exempt them from complying with the reasonable requirements of Chula Vista zoning laws. The constitutional protection of religious freedom, while it insures religious equality, on the other hand does not provide immunity from compliance with reasonable civil requirements imposed by the city. The individual cannot be permitted, on religious grounds, to be the judge of his duty to obey the regulatory laws enacted by the City of Chula Vista in the interests of the public welfare. The mere fact that such a claim of immunity is asserted because of religious convictions is not sufficient to establish its constitutional validity.

V

The foregoing conclusions derive support from a further body of law. The proposal to use a particular property as situs for the practices of a religious belief does not clothe that property with immunity or authorize non-conformity to zoning laws any more than a religious belief in the practice of polygamy gives immunity from the laws against bigamy. A long line of California cases establishes the right of a municipality to exclude churches from the R-1 zone. (Corp. Presiding Bishop v. City of Porterville, 90 Cal.App.2d 656, 203 P.2d 823 (app. dism.) 338 U.S. 805, 70 S.Ct. 78, 94 L.Ed. 487; Minney v. City of Azusa, 164 Cal.App.2d 12, 330 P.2d 255 (app. dism.) 359 U.S. 436, 79 S.Ct. 941, 3 L.Ed.2d 932; Garden Grove Congregation v. City of Garden Grove, 176 Cal.App.2d 136, 1 Cal.Rptr. 65; City etc. of San Francisco v. Burton, 201 Cal.App.2d 749, 20 Cal.Rptr. 378; Mumaw v. City of Glendale, 270 Cal.App.2d 454, 455, 76 Cal.Rptr. 245.) As stated in the Minney case 164 Cal.App.2d at page 24, 330 P.2d at page 261:

“(P)roposed use of property for religious purposes does not give it Per se a title to any particular zone; a church, like any other property owner, is to be considered on its merits as fitting into the general scheme of a comprehensive zoning, entitled to no preference and subject to no adverse discrimination.”

The United States Supreme Court dismissed the appeal in Corp. Presiding Bishop v. City of Porterville, supra, 90 Cal.App.2d 656, 203 P.2d 823, for want of a substantial federal question and explained the philosophy of its ruling as follows: “When the effect of a statute or ordinance upon the exercise of First Amendment freedoms is relatively small and the public interest to be protected is substantial, it is obvious that a rigid test requiring a showing of imminent danger to the security of the Nation is an absurdity. We recently dismissed for want of substantiality an appeal in which a church group contended that its First Amendment rights were violated by a municipal zoning ordinance preventing the building of churches in certain residential areas. Corporation of Presiding Bishop, C.J.C.L.D.S. v. Porterville, 338 U.S. 805, Ante, 487, 70 S.Ct. 78, 94 L.Ed. 487 (1949).” (American Communications Assn. v. Douds, 339 U.S. 382, 397, 70 S.Ct. 674, 683, 94 L.Ed. 925; Minney v. City of Azusa, supra, 164 Cal.App.2d 12, 19, 330 P.2d 255.)

Defendants' position is that any limitation on their desire to locate their species of occupancy any place they choose, violates their constitutional right. This argument flies in the face of the basic premise of zoning upheld in the Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, and a host of later cases. Differing types of occupancy, each legitimate and constitutionally protected, may be separated and located in different zoning districts.

VI

Defendants further charge that Chula Vista's ordinances infringe upon their right of association, travel, privacy and denies them equal protection. These precise challenges were considered and rejected by the Belle Terre court (416 U.S., pp. 7-8, 94 S.Ct. 1536). Concerning the charge of denial of equal protection, the United States Supreme Court concluded:

“We deal with economic and social legislation where legislatures have historically drawn lines which we respect against the charge of violation of the Equal Protection Clause if the law be ‘ ”reasonable, not arbitrary “ ‘ (citation) and bears ‘a rational relationship to a (permissible) state objective.’ (Citation.)” (Id., at p. 8, 94 S.Ct. at p. 1540.)

We conclude that Chula Vista's ordinances' limitations on R-1 uses do not expressly or in application encourage or discourage a religious belief or practice. At most they impose a place limitation on the number of unrelated persons who may live in a single-unit dwelling in an R-1 zone. These ordinances do not create any classification that would impinge upon any fundamental interest. They concern, impose a limit in a rational fashion in a conceded area of civil regulation. The distinction drawn by the ordinances between blood-marriage-adoption related persons and non-related individuals is a proper exercise of legislative power and rests upon a rational basis. (See Palo Alto Tenants Union v. Morgan, supra, 321 F.Supp. 908, 912; Brady v. Superior Court, supra, 200 Cal.App.2d 69, 19 Cal.Rptr. 242.)

The Supreme Court in Village of Belle Terre v. Boraas, supra, 416 U.S. 1, 8, 94 S.Ct. 1536, 1540, 39 L.Ed.2d 797, observed: “It is said, however, that if two unmarried people can constitute a ‘family,’ there can be no reason why three or four may not. But every line drawn by a legislature leaves some out that might well have been included. (Fn. omitted.) That exercise of discretion, however, is a legislative, not a judicial, function.”

We conclude that the competing values here tendered must be weighed on a “symbolic scale of constitutionality.” After such evaluative process, the scale tips in favor of the public interest inherent in land use regulation. The zoning regulations here seek to attain, by a rational means, a most fundamental and legitimate societal end to protect the quality of life itself. They pass constitutional muster.

VII

The foregoing conclusion of constitutionality of Chula Vista's limitation on R-1 zones is based upon the assumption that religious communal families are not excluded from occupancy in Chula Vista but rather are limited to admission on a conditional use permit in an R-3 zone. Facially, the Chula Vista ordinances authorize such uses and Chula Vista assures us there is no exclusion either by ordinance or by the administrative process. (See Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 281 A.2d 513.)

Defendants' cross-complaint and defendants charge that their religious family group are Excluded by bureaucratic interposition from living in Any zone in Chula Vista. The counter-affidavits filed do naught but raise a conflict in evidence. Chula Vista's declarations to the effect that there is a communal household in Chula Vista under a conditional use permit do not meet the broad charge of discretionary, arbitrary treatment of their applications for conditional use permits. “(I)ssue finding rather than issue determination is the pivot upon which the summary judgment law turns.” (Walsh v. Walsh, 18 Cal.2d 439, 441, 116 P.2d 62, 64.) Such factual dispute cannot be resolved by summary judgment process but only upon trial of the factual issue tendered.

The judgment is reversed and remanded for limited further proceeding concerning point VII in this opinion. In all other respects, the judgment is affirmed.

FOOTNOTES

1.  Chula Vista Municipal Code section 19.04.078: Dwelling, single family. “ ‘Single-family dwelling’ means a building designed for or used exclusively for residence purposes by one family or housekeeping unit. (Ord. 1212 s 1 (part), 1969: prior code s 33.1401 (part).)”Chula Vista Municipal Code section 19.04.092: Family. “ ‘Family’ means an individual; or two or more persons, all of whom are related by blood, marriage, or adoption; or a group of not more than three persons, excluding servants, who need not be related, living in a dwelling unit as a single housekeeping unit and using common cooking facilities. (Ord. 1697 s 1 (part), 1976: prior code s 33.1401 (part).)”

STANIFORTH, Associate Justice.

GEO. A. BROWN, P. J., and COLOGNE, J., concur.