ACKER v. BALDWIN (1941)

The plaintiff sued for declaratory relief and for an injunction against the defendants, officials of the county of Los Angeles, restraining the threatened enforcement of ordinance No. 1813, N.S., a county zoning ordinance. The trial court declared the ordinance oppressive, therefore unconstitutional and void, and entered judgment granting the relief sought. The defendants appealed.

Ordinance 1813, N.S., was adopted by the board of supervisors of the county of Los Angeles on March 29, 1930. It created a county zoning territory designated as South Santa Anita District, an unincorporated area which includes the town of Temple City. The ordinance provided: ‘No building, structure, improvement or premises shall be used, and no building, structure or improvement shall be erected, constructed, established, altered or enlarged in Zone R–1 which is designated, arranged or intended to be occupied or used for any purpose other than a single family residence, together with the outbuildings necessary to use such located on the same lot or parcel of land, including a private garage with a capacity not to exceed three cars.’

The entire district contains 2,496 acres and is sparsely settled. By the ordinance eighty-six per cent of the district was zoned for strictly R–1 or residential purposes. The record shows, however, that the district, up to about ninety per cent of its area, is devoted to light commercial and agricultural purposes, which for the most part are conducted at or from the homes of the various residents. It also appears that when the district was laid out in 1922 by the planning commissioners it was in their contemplation that the entire district would be available for residence and light commercial pursuits by the residents to supplement their incomes. There are in the district divers businesses, in addition to the plaintiff's, operated from the homes of the residents. They include such businesses as real estate, insurance, doctors and dentists, engineering, sanatoriums and rest homes, serum manufacturing, electrician, dairies, hay dealers, aviary, ornamental rock works, poultry ranches, agricultural pursuits, cement contractor, riding stable, plowing, teaming and leveling contractors, contractors and builders, paint shops, hatchery, brick and coal yard, wrought iron manufactory, junk dealers, kennels, locksmith, lawnmower and bicycle repairing and shoe repair.

The plaintiff acquired his residence in July, 1930, a few months after the ordinance went into effect. He conducted and now conducts a contracting and jobbing plumbing business, with his office and headquarters at his residence where he lives with his wife and children. He has fastened a small sign on the premises indicating his business, maintains a truck which he has equipped with a portable plumbing shop, and stores some fittings and pipe on the premises. Otherwise there is no indication that the premises are used for any purpose other than residential. Many of the businesses above enumerated became established in the R–1 zone and have been conducted similarly from the residences of the respective operators thereof since the adoption of ordinance No. 1813, N.S. Such businesses are not confined to any particular area in the R–1 zone, but are scattered over the district generally, in the immediate neighborhood of the plaintiff as well as elsewhere. Apparently ordinance No. 1913, N.S., remained without any attempt being made to enforce it until prior to the filing of the action herein in February, 1937. Subsequent to the rendition of the judgment and the taking of the appeal herein the board of supervisors adopted a new map of the district, reducing the R–1 zone to 25 per cent of the original area established by the ordinance. This circumstance is made the basis of a motion to dismiss the appeal herein on the ground that the questions involved have become moot. But inasmuch as the plaintiff's residence remains in the 25 per cent R–1 zone, it is deemed necessary also to consider the merits of the appeal.

The trial court made a personal inspection of the district before formulating its findings of fact and rendering its conclusions and judgment. In addition to the facts presented in the evidence hereinabove stated, it found that the zoning ordinance was not reasonably or at all necessary or related to the public health, safety, morals and general welfare, and that its enforcement would jeopardize and deprive the plaintiff of his rights to the free use and enjoyment of his property as guaranteed by the federal and state Constitutions. It concluded that the ordinance was discriminatory, unreasonable, oppressive, arbitrary and confiscatory in nature and in so far as it attempted to prohibit home industries in the R–1 zone it was unconstitutional and void.

The question on this appeal is whether the trial court correctly concluded, on the facts before it, that the zoning ordinance was of the character stated, namely, discriminatory, unreasonable, oppressive and arbitrary, confiscatory in its nature and therefore unconstitutional and void. If there is sufficient support in the record for the finding that the ordinance was not reasonably or at all related or necessary to the public health, safety, morals or general welfare, then the conclusion of the court follows and is in accordance with the law as expressed in the cases of Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479; In re White, 195 Cal. 516, 234 P. 396; Pacific Palisades Ass'n v. Huntington Beach, 196 Cal. 211, 237 P. 583, 40 A.L.R. 782; Hurst v. City of Burlingame, 207 Cal. 134, 143, 277 P. 308; People v. Hawley, 207 Cal. 395, 411, 279 P. 136; Biscay v. City of Burlingame, 127 Cal.App. 213, 218, 15 P.2d 784.

A strong presumption favors the validity of the legislative act. Nevertheless the validity of the act depends upon its reasonable relation to the public welfare. If reasonable minds might differ as to the presence of any substantial relation to the public health, safety, morals or general welfare, the zoning ordinance will be held valid. Miller v. Board of Public Works, supra; Zahn v. Board of Public Works, 195 Cal. 497, 234 P. 388. We reiterate what was said in the Miller case [195 Cal. 477, 234 P. 383, 38 A.L.R. 1479]: ‘The police power of a state is an indispensable prerogative of sovereignty and one that is not to be lightly limited. Indeed, even though at times its operation may seem harsh, the imperative necessity for its existence precludes any limitation upon its exercise save that it be not unreasonably and arbitrarily invoked and applied. [Citing cases.] 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 * * * or general welfare of the people of a community. * * * It may be taken as now well settled that courts are required in considering the validity of zoning ordinances to determine in addition to the need thereof, whether or not they are arbitrary and discriminatory in their conception and application, and whether they have any reasonable tendency to promote the public morals health, safety, or general welfare and prosperity of a community. It may be safely said, we think, that it is the consensus of opinion that the regulation of the development of a city under a comprehensive and carefully considered zoning plan, does tend to promote the general welfare of a community, and there is no doubt, it seems to us that the adoption and enforcement of such a plan, when fairly conceived and equably applied, is well within the scope of the police power. * * * It cannot be gainsaid, however, that many municipalities, evidently upon the theory that zoning is a panacea for civic 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. In the determination of this problem two questions present themselves: (1) Is the scheme of zoning as a whole sound, that is to say, is the method of classification and districting reasonably necessary to the public health, safety, morals, or general welfare? and (2) has the scheme of classification and districting been applied fairly and impartially in each instance? * * * It is scarcely necessary to reiterate here the well-recognized principle that courts are loath to substitute their judgment as to the necessity for a particular enactment for the legislative judgment as to the need of such enactment with reference to the exercise of the police power. A large discretion is vested in the legislative branch of the government with reference to the exercise of the police power. * * * Every intendment is to be indulged by the courts in favor of the validity of its exercise and, unless the measure is clearly oppressive, it will be deemed to be within the purview of that power. It is only when it is palpable that the measure in controversy has no real or substantial relation to the public health, safety, morals, or general welfare that it will be nullified by the courts. The courts may differ with the Legislature as to the wisdom and propriety of a particular enactment as a means of accomplishing a particular end but as long as there are considerations of public health, safety, morals, or general welfare which the legislative body may have had in mind which could have justified the regulation, it must be assumed by the court that the legislative body had those considerations in mind and that those considerations did justify the regulation.’

We also said in Pacific Palisades Ass'n v. Huntington Beach, supra [196 Cal. 211, 237 P. 540, 40 A.L.R. 782], and repeated in People v. Hawley, supra: ‘Every intendment is to be made in favor of the lawful exercise of municipal power making such regulations, and it is not the province of courts, except in clear cases, to interfere with the exercise of that authority. But, as was recently said by the Supreme Court of the United States, ‘while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.’ * * * Therefore, notwithstanding this general grant of power, it is a thoroughly well-settled doctrine that municipal by-laws and ordinances undertaking to regulate useful business enterprises 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 right to carry on a lawful business, to make contracts, or to use and enjoy property.' In the Pacific Palisades case the complaint contained allegations that similar businesses and operations were permitted in even more densely populated areas in the city which otherwise were of the same general character as that in which the plaintiff was prohibited from operating. It was held that a cause of action was stated which if supported by proof would establish the unreasonable and discriminatory character of the alleged zoning ordinance as applied to the plaintiff in that case.

A review of the facts presented to the trial court indicates that it was justified in concluding that there could not have been any considerations of public health, safety, morals, or general welfare which were reasonably or at all related to or promoted by the zoning ordinance applicable to Temple City. The attempt to rezone the major portion of the district to strictly residential purposes after the planning commissioners had laid out the district generally for residential and light commercial purposes proved in fact to be but a futile gesture. This is also eloquently reflected in the board's adoption of an amended zoning map materially reducing the R–1 zone to one-fourth its original area. In addition to the clear lack of any sufficient or real relation to the promotion of the general welfare in the adoption of the zoning ordinance, we have a situation where the board, apparently in belated recognition of the actual requirements of the general welfare, attempted to modify the prior zoning regulations. While the effect of that modification in not before us on the consideration of the merits of the appeal, it is presented in connection with the motion to dismiss the appeal. In that regard it would be well to note that an unlawful discrimination as to the plaintiff herein likewise would ensue unless the zoning requirements of the district are made applicable as to the date of the modification. In other words, in accordance with what was said in Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14, it would be inequitable and confiscatory as to the plaintiff in this case, by a modification of the ordinance, to permit some of the businesses to remain which have come into existence since the adoption of the zoning ordinance while requiring others in an immediate similar neighborhood to be removed. Therefore, if the modification of the ordinance stand as a reasonable exercise of the police power from the standpoint of zoning requirements in relation to the general welfare, it should speak as of the date of the adoption of the modification. Thus speaking, the principles declared in the case of Jones v. Los Angeles, supra, would preclude the application of the modified ordinance of prevent the plaintiff's pursuing his business as it is presently constituted and established at his residence. His would be a nonconforming use in existence at the date of the adoption of the applicable legislative act, and in accordance with well-recognized principles the right to pursue that use could not thus be taken from him. The plaintiff would therefore be entitled to prevail herein either on a consideration of the motion or of the merits of the appeal. An appropriate disposition of the questions raised herein, however, is made pursuant to our conclusions on the consideration of the merits of the appeal.

The judgment is affirmed.

I cannot agree that the facts found by the trial court, compel the conclusion, as a matter of law, that the ordinance challenged by the respondent property owner is invalid because of the violation of constitutional rights. It is now settled beyond question that although a court may differ from the determination of the legislative body, unless a zoning measure is clearly oppressive, it will be deemed to be within the purview of the police power. There will always be difference of opinion as to the means of accomplishing a particular end, but if there is a reasonable basis for the belief that the establishment of a strictly residential district has substantial relation to the public health, safety, morals or general welfare, a zoning ordinance to accomplish that purpose will be upheld. Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479; Zahn v. Board of Public Works, 195 Cal. 497, 234 P. 388.

In earlier times, zoning regulations were, in the main, enacted to restrict the use of property in districts already partially, or somewhat completely, built up. With the growth of the large cities as the result of motor transportation, governmental authorities have endeavored to set aside areas for residential purposes in advance of their use. Certainly, it is more in the interest of the general welfare that certain districts be set aside to residential uses before there has been any large investment for improvements than to apply restrictions after business has become established. This is wise city planning in the public interest. It has been made possible by general judicial approval of the doctrine that zoning may properly take into consideration those factors which, although they may not be exactly defined as relating to public health, safety or morals, come under the broad term of general welfare.

Also, a zoning plan must be viewed as a whole and the court will not search out individual cases of discrimination or hardship. And it is not necessary, in order to sustain such legislation, to show that the public welfare damands the exclusion of business uses for each individual lot in the area zoned. Rehfeld v. City and County of San Francisco, 218 Cal. 83, 21 P.2d 419; Jones v. City of Los Angeles, 211 Cal. 304, at page 309, 295 P. 14.

In the present case the court found ‘that Temple City, which notwithstanding its name, is an unincorporated territory, was founded with the intention that its inhabitants would use their residence properties for some light commercial purposes which would enable them to make a living; that chicken raising on a commercial scale has been and is the most extensive of these light, commercial home industries, but throughout the residence district in Temple City there have been and are scattered real estate offices, stonemasons' headquarters, cement contractors' offices, and the like; that this was the state of affairs when the zoning ordinance was passed; the court finds that this zoning ordinance is unreasonable because it attempts to make a strictly residential district out of a district where home industries have always been conducted; that said ordinance purports to prevent the living upon and use of said property for any purpose other than a single family residence and to prevent the living upon and the conduct of any business from and upon said premises; that said premises are in a sparsely built-up community without the corporate limits of any municipality and in the unincorporated section of Los Angeles county; that said section is in the center of a poultry, truck gardening and fruit growing community wherein and whereat all residents, without substantial exception, are poor people who at least must of necessity and do get their living or a large portion thereof from the use of the said properly otherwise than in a strictly residential capacity; that much of the property in said restricted and zoned district has, for a long time, and prior to the enactment of said ordinance been and now is, used for residential and business purposes; that said property is closely surrounded by numerous properties so used for residential and business purposes, and is near and in close proximity to railroads and railroad yards and other business areas; that plaintiff has long used his property as hereinbefore alleged; that the use of said property by plaintiff, or by the numerous others using their properties for residential and business purposes, has, in nowise, reasonably or otherwise, impaired or injuriously affected the public health, safety, morals or general welfare of the community of Temple City, or any other community or section of Los Angeles County; that the said Zoning Ordinance is not reasonably or at all necessary to said public health, safety, morals and general welfare, and that the enforcement of said Ordinance, as valid, will jeopardize and deprive the plaintiff of his rights to the free use and enjoyment of his said property as guaranteed by the Federal and State Constitution.’

What the intention of the ‘founders' of Temple City was or how it may now be ascertained is not made clear. Moreover, it is immaterial, for the police power is not subject to the mental state of relators who lay out a subdivision. Nor may the police power be limited by private contract. Thus it has been held that a city and county may not be estopped by its conduct to require the removal of a cemetery, estoppel being no stronger than a contract entered into by the sovereign. Laurel Hill Cemetery Association v. City & County of San Francisco, 152 Cal. 464, 93 P. 70, 27 L.R.A. N.S., 260, 14 Ann.Cas. 1080.

Concerning the next finding chicken raising and ‘commercial home industries' are probably carried on in most large areas adjacent to cities. There are usually ‘scattered’ real estate offices in such districts but there is no finding that these uses surround the respondent's property or are even near it. But the existence of nonconforming uses does not invalidate a zoning ordinance.

The finding ‘that much of the property in said restricted and zoned district has, for a long time, and prior to the enactment of said ordinance been and now is, used for residential and business purposes' is so ambiguous and general as to be utterly meaningless. What is meant by ‘much’? The court did not state the number, nature or extent of the industrial commercial uses in the district, nor their proximity to the respondent's property. A large part of the land in any district which is zoned is ordinarily used for residential and business purposes. That situation does not forbid zoning.

These findings were made upon evidence which shows, without conflict, that the total area zoned is 2,496 acres, approximately four square miles. The respondent's property lies within the commercial and residential district in the center of this area which comprises four hundred acres. In 1937, fifty-three (53%) per cent of it was vacant; thirty-six (36%) per cent was used for single family residences. Commercial and industrial uses accounted for less than two (2%) per cent, and only six (6%) per cent was devoted to agriculture. In general, the community consists of a commercial district running along a main street immediately surrounded by property chiefly given over to residential uses in the next few blocks, with agricultural pursuits surrounding that area. Like practically every other community, these uses sometimes merge near the boundaries, but the lines of demarcation in Temple City are more sharply drawn than in many other districts where zoning legislation has been upheld. There is a single track passenger line of the Pacific Electric Railway on the main street, Las Tunas boulevard, and a branch line of the Southern Pacific Railroad over a mile away from the respondent's property. No other land within the district zoned is used for railroad purposes. Under the zoning ordinance adopted by the board of supervisors, sixty-seven (67%) per cent of the area was devoted to single family residences, twenty-six (26%) per cent to multiple family dwellings, and the remainder seven (7%) per cent to commercial uses.

The finding that the respondent has long used his property for a commercial purpose is immaterial because that use commenced subsequent to the enactment of the zoning ordinance. No vested right to violate an ordinance may be acquired by continued violations. Also, the court's finding that the use of property by the respondent and others for business purposes, has, in no wise, reasonably or otherwise impaired or injuriously affected the public health, safety, morals or general welfare will not sustain the judgment. Courts do not require that the prescribed use of each individual lot in an area zoned will have this effect if the zoning plan, as a whole, promotes these objectives of the police power. Rehfeld v. City and County of San Francisco, supra.

Unquestionably, in enacting the ordinance zoning Temple City, the purpose of the board of supervisors was to restrict a sparsely settled area near the rapidly growing city of Los Angeles for residential purposes. Zoning regulations look to the future, not to the past, and cannot be made retroactive. Jones v. City of Los Angeles, supra; Biscay v. City of Burlingame, 127 Cal.App. 213, 15 P.2d 784. There was no attempt to interfere with any existing use. But, in effect, the legislative body declared that in the interests of the future development of the metropolitan area surrounding the city of Los Angeles, reasonable city planning required that this section be set aside for residential purposes. Of course, there would not be unanimous agreement among all citizens concerning the desirability of zoning that particular area. But government cannot wait for unanimous approval of its purposes, nor do its enactments depend upon such approval for validity.

Also, the contention of the respondent that the area included within the terms of the ordinance is much less subject to zoning in connection with reasonable desires to preserve the health and welfare than communities of more pretentious character is one which has no place in a judicial proceeding. Considerations of private interest will usually be sufficient to convince one that regulation is much more desirable when applied to property belonging to another than to him. Moreover, as has been pointed out before, the respondent bought the property upon which he lives and maintains his business after the ordinance was adopted; he is not in the position of one who finds that a present use of his land does not conform to the requirements of new legislation.

For these reasons I believe the judgment should be reversed.

PER CURIAM.