# City of Santa Barbara v. Adamson

> California Supreme Court · May 15, 1980 · 27 Cal. 3d 123

URL: https://www.frixlaw.com/law-library/cases/9564193

## Case

- **Full name:** CITY OF SANTA BARBARA, Plaintiff and Respondent, v. BEVERLY ADAMSON Et Al., Defendants and Appellants
- **Court:** California Supreme Court
- **Decided:** May 15, 1980
- **Citations:** 27 Cal. 3d 123; 164 Cal. Rptr. 539; 610 P.2d 436; 12 A.L.R. 4th 219; 1980 Cal. LEXIS 168
- **Precedential status:** Published
- **Opinion:** Dissent by Manuel
- **Judges:** Newman, Manuel
- **Cited by:** 107 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9564193

## How later opinions describe it (automated extraction)

- finding the right to choose one's unrelated cohabitants is encompassed within the fundamental right to privacy protected by the California Constitution and applying strict scrutiny in striking down the zoning ordinance
- holding ordinance limiting to five the number of unrelated people who may live in single-family zones violates fundamental right to privacy under the California Constitution
- finding over- and under-inclusiveness in the context of a right to privacy challenge

## Opinion text

MANUEL, J.
I dissent.
The majority opinion, casting the City of Santa Barbara—and presumably the at least 37 other cities which have similar zoning ordinances 1 —in the sinister role of antagonist to the “alternate family,” radically distorts the meaning, purpose, and intention of the provisions we here consider. The Santa Barbara ordinances, it must be emphasized, do not preclude or impede the establishment of communal living arrangements in the single-family zones of the city. On the contrary they expressly permit such arrangements, simply imposing a numerical limitation thereon. Thus, the ordinances provide, a “family” for zoning purposes is either a traditional family (i.e., one composed of persons related by blood, marriage, or legal adoption), or what the majority terms an “alternate” family—one which, in the langauge of the ordinance, comprises “[a] group of not to exceed five (5) persons, excluding servants, living together as a single housekeeping unit in a dwelling unit.” (§ 28.04.230.)
*139 The majority, perceiving in these provisions some sort of dark animus against nontraditional living arrangements, 2 concludes that here at stake is “the right to live with whomever one wishes or, at least, to live in an alternate family with persons not related by blood, marriage, or adoption.” (Majority opn., ante, at p. 130; fn. omitted.) As I read the ordinances, that right is expressly granted. The question before us, then, is whether those ordinances, insofar as they limit the number of unrelated persons who may live in a single dwelling unit, violate any cognizable constitutional rights.
It is clear that no rights guaranteed by the federal Constitution are offended. In the comparatively recent case of Village of Belle Terre v. Boraas, supra 416 U.S. 1 , the United States Supreme Court addressed a challenge to the constitutional validity of an ordinance which, like that here before us, permitted unrelated persons to live together “as a single housekeeping unit” in a single-family zone but placed a numerical limit on such “alternate” arrangements. The ordinance was challenged on a number of constitutional grounds, including due process, the right to travel, and the rights of free association and privacy. The court held, however, that the case involved “no ‘fundamental’ right guaranteed by the Constitution. ...” (Id., at pp. 7-8 [ 39 L.Ed.2d at p. 803 ].) Therefore, the court concluded, the test to be applied in determining whether the legislative body had exceeded the scope of its constitutional power was that normally applied to “economic and social legislation” of this kind—i.e., whether it bore a rational relationship to *140 a permissible state objective. (Id., at p. 8 [ 39 L.Ed.2d at p. 803 ].) This, in the view of the high court, it did. Dismissing the contention that the numerical limit (two in that case) on “alternative” family groups was arbitrary, 3 it went on to say: “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.” (Id., at p. 9 [ 39 L.Ed.2d at p. 804 ].)
The high court expanded on this theme in the case of Moore v. East Cleveland (1977) 431 U.S. 494 [ 52 L.Ed.2d 531 , 97 S.Ct. 1932 ], There the zoning ordinance in question defined “family” in restrictive terms, excluding not only “alternate” family arrangements but members of the extended natural family as well—in this case a woman’s grandson. This, the court held, was impermissible. Justice Powell, speaking for a plurality of the court, distinguished Belle Terre, noting that whereas the ordinance in that case promoted family needs and values, the East Cleveland ordinance had “chosen to regulate the occupancy of its housing by slicing deeply into the family itself.” (Id., at p. 498 [ 52 L.Ed.2d at p. 537 ].) Thus, the court suggested, whereas the demands of due process do not trench upon the power of a city to limit and tailor the use of family zones by persons other than those having natural family ties to one another, the situation is quite different when the zoning power was utilized so as to impinge unreasonably on natural family relationships. “When a city undertakes such intrusive regulation of the family, neither Belle Terre nor Euclid [v. Ambler Realty Co. (1926) 272 U.S. 365 ( 71 L.Ed. 303 , 47 S.Ct. 114 , 54 A.L.R. 1016 )] governs; the usual judicial deference to the legislature is inappropriate.” (Id., at p. 499 [52 L.Ed.2d at p. 537J.)
Justice Brennan, joining in the plurality opinion but adding a word in concurrence, stated the distinction thus: “Indeed, Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), the case primarily relied upon by [the city], actually supports the Court’s decision. The Belle Terre ordinance barred only unrelated individuals from constituting a family in a single-family zone. The village took special care in its brief to emphasize that its ordinance did not in any manner inhibit the choice of related indi *141 viduals to constitute a family, whether in the ‘nuclear’ or ‘extended’ form. This was because the village perceived that choice as one it was constitutionally powerless to inhibit.” {Id., at p. 511 [52 L.Ed.2d at pp. 544-545], final emphasis added.) The implication of this statement, in light of the express holding in Belle Terre, is clear.
The distinction drawn by the Belle Terre and Moore cases has never been better expressed than it was in a case which, although antedating them by some four years, clearly anticipated their rationale. In Palo Alto Tenants Union v. Morgan (N.D.Cal. 1970) 321 F.Supp. 908 , affd. (9th Cir. 1973) 487 F.2d 883 , the court confronted a challenge to a city zoning ordinance similar in all relevant respects to that here before us. It was urged that because an ordinance placing restrictions on the use of an R-l zone by “traditional” families might be deemed “highly suspect,” the ordinance there at bench—placing numerical limitations on “alternate” family arrangements in such a zone—should be viewed with the same suspicion. The court disagreed: “[T]here is a long recognized value in the traditional family relationship which does not attach to the ‘voluntary family’. The traditional family is an institution reinforced by biological and legal ties which are difficult, or impossible, to sunder. It plays a role in educating and nourishing the young which, far from being ‘voluntary’, is often compulsory. Finally, it has been a means, for uncounted millenia, of satisfying the deepest emotional and physical needs of human beings. A zoning law which divided or totally excluded traditional families would indeed be ‘suspect’. [¶] The communal living groups represented by plaintiffs share few of the above characteristics. They are voluntary with fluctuating memberships who have no legal obligations of support or cohabitation. They are in no way subject to the State’s vast body of domestic relations law. They do not have the biological links which characterize most families. Emotional ties between commune members may exist, but this is true of members of many groups. 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. . . 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.” (321 F.Supp. at pp. 911-912, fn. omitted.)
*142 The majority, faced with the authorities delineated above, quite understandably chooses to shift their focus away from the protections offered by the federal Constitution. Turning instead to the comprehensive terms of article I, section 1 of the state Constitution, and seizing upon certain expansive general passages to be found in White v. Davis (1975) 13 Cal.3d 757 [ 120 Cal.Rptr. 94 , 533 P.2d 222 ], they quickly and without significant discussion conclude that the right of privacy set forth in that provision “comprehends the right to live with whomever one wishes or, at least, to live in an alternate family with persons not related by blood, marriage, or adoption.” (Majority opn., ante, at p. 130, fn. omitted.) Having thus discovered the “fundamental” right they seek, they then proceed to set in motion the mighty engine of strict scrutiny. The ordinance, needless to say, does not survive its batterings.
In my view the majority have proceeded a bit too hastily. The necessary condition precedent to the application of strict scrutiny, and the search for a “compelling state interest” which it entails, is the determination that the right at stake is one lodged in the fabric of our Constitution. That determination, in the context of the. instant case, requires that we find that right to be one comprehended within the guarantee of privacy set forth in article I, section 1. The relevant authorities, in my view, do not support the conclusion that “the right to live with whomever one wishes or, at least, to live in an alternative family with persons not related by blood, marriage, or adoption” is one enjoying that status.
The leading case of White v. Davis, supra, was one involving a police department’s covert intelligence gathering activities, which activities were challenged as an infringement of the then newly adopted state privacy guarantee. There, noting that “the full contours of the new constitutional provision have as yet not even tentatively been sketched” ( 13 Cal.3d at p. 773 ), we went on to provide such a sketch by indicating, through reference to election materials indicating the voters’ intent, the broad area of concern within which the more detailed draftsmanship of judicial precedent was to occur. “Although the general concept of privacy relates, of course, to an enormously broad and diverse field of personal action and belief,” we noted, “the moving force behind the new constitutional provision was a more focussed privacy concern relating to the accelerating encroachment on personal freedom and security caused by increased surveillance and data collection activity in contemporary society. The new provision’s primary purpose is to afford *143 individuals some measure of protection against this most modern threat to personal privacy.” {Id., at pp. 773-774; italics added, fn. omitted.) We also noted “the principal ‘mischiefs’ at which the amendment is directed.” They are: “(1) ‘government snooping’ and the secret gathering of personal information; (2) the overbroad collection and retention of unnecessary personal information by government and business interests; (3) the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party; and (4) the lack of a reasonable check on the accuracy of existing records.” {Id., at p. 775.)
In the recent case of People v. Privitera (1979) 23 Cal.3d 697 [ 153 Cal.Rptr. 431 , 591 P.2d 919 ] it was contended that the state constitutional guarantee of privacy encompasses “a right to access to drugs of unproven efficacy.” (Id., at p. 709.) We held that it did not, pointing out that no such right was comprehended within the zone of privacy concern in which the amendment was designed to have effect. “In the absence of any evidence that the voters in amending the California Constitution to create a right of privacy intended to protect conduct of the sort engaged in by defendants, we have no hesitation in holding that section 1707.1 does not offend that constitutional provision.” (Id., at pp. 709-710.) (See also People v. Davis (1979) 92 Cal.App.3d 250, 260 [ 154 Cal.Rptr. 817 ].)
Similarly, I find no evidence of any kind that the voters, when they added the privacy provision found in article I, section 1, intended to establish a “right to live with whomever one wishes or, at least, to live in an alternate family with persons not related by blood, marriage, or adoption” (majority opn., ante, at p. 130)—such right to be preserved from all infringement except in those cases where a city can shoulder the unenviable burden of demonstrating some “compelling state interest” which justifies doing so. Accordingly, I conclude that the majority, in conferring “fundamental” constitutional status to the right it so describes, are in error. If the courts, in interpreting the privacy provision of our state Constitution, are to take upon themselves the function of determining when the wishes and desires of a particular group of people are to be accorded “fundamental” status—and thus invoke strict judicial scrutiny of legislation affecting such rights—the constitutional balance of our government will be radically dislocated. I do not believe that such a dislocation was intended by the voters of this state when they, out of a manifest concern for the excesses of governmental surveillance, adopted article I, section 1.
*144 The familiar dictum of Chief Justice Marshall (McCulloch v. Maryland (1819) 17 U.S. (4 Wheat.) 316, 406 [ 4 L.Ed. 579, 601 ]) bears renewed emphasis in cases of this kind. We deal here not with legislative wisdom but with constitutional principle. It may well be that an enlightened municipality, alert to the flow of social currents and the development of wholesome and valuable communal living arrangements outside the framework of the traditional family structure, might wish to tailor its zoning requirements in such a manner as to accommodate such arrangements on an essential parity with those of family groups. The City of Santa Barbara, to a significant extent, has done so, permitting such arrangements to coexist with family groups in its single-family zone, but placing a numerical limit on the size of such “alternate” groups—clearly with a view to imposing some limit on the size of living groups within the zone which are not subject to the normal biological and social limits of the natural family. It might well be that a legislator having the wisdom of Solomon would remove all such limits. That, however, is not the question before us. The question before us is whether the failure to remove them is unconstitutional. In my view, and as the cases which I have discussed above make clear, the answer to that question is decidedly no.
I would affirm the order.
Clark, J., and Richardson, J., concurred.
Respondent’s petition for a rehearing was denied June 19, 1980. Clark J., Richardson, J., and Manuel, J., were of the opinion that the petition should be granted.
Amicus curiae City of Los Angeles advises us in its brief that the following California cities have adopted a definition of “family” in their zoning ordinances which is identical to that adopted by Santa Barbara:
1. Auburn: Municipal Code section 9-4.137
2. Azusa: Municipal Code section 19.04.300
3. Baldwin Park: Municipal Court section 9426(f) 1
4. Bell: Municipal Code section 9211 (F)2
5. Burlingame: Municipal Code section 25.08.260
6. Camarillo: Municipal Code section 19.04.310
7. Carlsbad: Municipal Code section 21.04.145
8. Chula Vista: Municipal Code section 19.04.092
9. Colusa: Zoning Ordinance No. 191, section 4.25
10. Corte Madera: Municipal Code section 18.09.105
11. Crescent City: Zoning Ordinance section 30-700.36
12. Davis: Municipal Code section 24-1, article 4
13. Del Mar: Municipal Code, Chapter 30, section 30-32
14. Del Rey Oaks: Municipal Code section 11-217.1
15. Downey: Municipal Code section 9104.96
16. El Cajon: Municipal Code section 17.04.390
17. Hidden Hills: Municipal Code 47, section 1.17
18. Long Beach: Municipal Code section 9120.2
19. Los Angeles: Municipal Code, chapter 1, article 2, section 12.03
20. Manhattan Beach: Municipal Code, section 10-3.234
21. Modesto: Municipal Code section 10.2.502(d) 1
22. Montebello: Municipal Code section 9202.6(F) 1
23. Monterey: City Code section 2.08, appendix A
24. Monterey Park: Municipal Code section 21.04.275
25. Palos Verdes Estates: Municipal Code section 18-2.17
*139 26. Richmond: Municipal Code section 15.04.040
27. Riverside: Municipal Code section 19.04.138
28. San Diego: Municipal Code section 101.0407 (B1-B5); section 101.0101.20
29. San Francisco: Municipal Code, part 11, chapter 11 section 102.8
30. Santa Barbara: Municipal Code section 28.04.230(2)
31. Santa Cruz: Municipal Code section 24.10.354; section 24.16.300-341
32. Simi Valley: Zoning Ordinance No. 8170-25
33. Thousand Oaks: Municipal Code section 9-4.230
34. Torrance: Municipal Code section 91.2.24(b)
35. Vallejo: Municipal Code section 16.04.170
36. Vista: City Code, appendix A, Zoning Ordinance section 238
37. Whittier: Municipal Code section 911 l.(f)2
Indeed it is even suggested, albeit by rhetorical question, that one motive underlying Santa Barbara’s zoning ordinances might have been a fear “that groups of unrelated persons [might] hazard an immoral environment for families with children.” (Majority opn., ante, at p. 133.) 1 have difficulty understanding the relevance of such an observation in a case where the subject ordinances explicitly permit “groups of unrelated persons” to live together in a single-family zone. (See also Village of Belle Terre v. Boraas (1974) 416 U.S. 1, 8 [ 39 L.Ed.2d 797, 803-804 , 94 S.Ct. 1536 ].)
“It is said, however, that if two unmarried people can constitute a ‘family,’ there is no reason why three or four may not. But every line drawn by a legislature leaves out some that might well have been included. That exercise of discretion, however, is a legislative, not a judicial, function.” (Village of Belle Terre v. Boraas, supra, 416 U.S. 1, 8 [ 39 L.Ed.2d 797, 803-804 ], fn. omitted.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9564193. Public record. Not legal advice.