Wilkins v. City of San Bernardino

CARTER, J.

I dissent.

The trial court granted an injunction against the enforcement of a zoning ordinance of defendant city of San Bernardino, as against certain property owned by plaintiff in that city.

The property herein involved is the west 112 feet of lots 69 and 70, that is, a parcel with 100 foot frontage on Acacia Avenue and extending 112 feet from Acacia Avenue toward E Street in the city of San Bernardino. E Street runs north and south and is intersected by Marshall Boulevard which runs east and west. Acacia Avenue crosses Marshall Boulevard to the east of E Street, a distance of 394 feet. Marshall and E are 82.5 foot streets and Acacia is a 60-foot street. A strip extending from the west side of E to the east side of Acacia along the north side of Marshall is 100 feet wide apparently consisting of lots 71 and 72, each with a 50-foot width on Acacia and E. The strip immediately to the north of lots 71 and 72 is also 100 feet wide consisting of lots 69 and 70, each 50 feet wide on Acacia and E. All four corners of the intersection of Marshall and E are zoned for business. Particularly in regard to the block where the property involved is located, the area of the business zone includes the east 282.15 feet of lots 69 and 70 (that is, all of those lots except the west 112 feet here involved) and the east 150 feet of lots 71 and 72. All of the other property in the vicinity is in a zone calling for single family dwellings. However there are four houses on the west portion of lots 71 and 72 which occupy spaces of less than the 5,000 square feet required for single family dwellings. In other words, the business zone is a spot neighborhood business district.

E Street and Marshall Boulevard are main thoroughfares, carrying considerable traffic. On the northwest corner of the intersection of those streets, 85 feet on Marshall and 100 feet *346 on B is a two-story building with commercial enterprises on the first floor and apartments on the second. The other three corners are devoted to business. Plaintiff has constructed on the portion of lots 69 and 70 lying east of the west 112 feet two apartment buildings, with 52 feet between them. The structures on the west 112 feet are continuations of those buildings and the area between them remains the same. A 10-foot right of way runs from Marshall to the 52-foot strip thence west to Acacia. He extended those apartments on the east portion of lots 69 and 70 to the west portion thereof making in each extension, as found by the court, “housing spaces adaptable and suitable for apartments and that there are two such apartments over the said lower portions of said buildings on said lots now in use for single family residences, and that there is in the upper portion of said building extending upon said west 112 feet of said Lot 69 additional housing space adaptable and suitable for apartment use, and that there is in the upper portion of' said building extending upon said west 112 feet of said Lot 70 additional housing space adaptable and suitable for apartment use, making suitable and desirable housing space for two separate families overhead on said west 112 feet of said Lot 69 and for two separate families overhead on said west 112 feet of said Lot 70.” The buildings, could be used for single family dwellings or for two family dwellings on the second floor of each inasmuch as they have full facilities, including kitchens.

The validity of the ordinance generally is not questioned. It is claimed to be invalid as applied to the use of the structures on the west" half of lots 69 and 70, and that because of changed conditions the ordinance is invalid as applied to plaintiff.

Defendant contends that the findings do not support the judgment nor the evidence the findings. The court found that “such a use [of the structures for multiple dwelling purposes] is in the enjoyment of a substantial property right of said plaintiff; that such a use is not deterimental to the health, safety, morals or welfare of the persons residing in the Community and neighborhood in which said apartments are situated or of the residents or people of said City; that such a use does not impede, hinder or interfere in any manner whatsoever with the attainment of all the objectives for which said Ordinance was enacted; and that said four apartments on the west 112 feet of said lots 69 and 70 are so placed and erected *347 that they are more adaptable and more useful for multiple dwelling purposes than for the purposes for which said territory is now zoned in that said apartments are now located in, adjoin and are on the same lots as constructions and properties now used for business and commercial purposes, and that the enforcement of the provisions of said Ordinance as to said plaintiff as to said four apartments on the west 112 feet of lots 69 and 70 is an oppressive, confiscatory and unreasonable restriction of his property rights therein and thereto.” And “that multiple dwelling status appears to exist between Acacia St. and F Street on both sides of Marshall Blvd.; that between Acacia St. and E St. along said Marshall Blvd. on the north side are four frontages, . . . that the square feet occupied by each is in each case less than 5000 sq. ft., two on the south side of Marshall Blvd. between E St. and Acacia St. . . . each having an are [a] of less than 5000 sq. ft. Said City Ordinance No. 1675 in Article 6, Section 1, Zone 1, sets out that a requirement of an area of 5000 sq. ft. is the minimum requirement for an area for a single family residence, unless an existing survey already made should prevent the same, and the actual existing conditions appear to be that there are two dwellings on Lot 2 Thompson Bros. Poultry Subdivision on a frontage of 60 ft. just across Acacia St. from plaintiff’s said west 112 ft. of said Lots 69 and 70 . . . that it is impractibZe to maintain and limit the use of each to a single-family classification and that to do so constitutes an unwarranted and unreasonable invasion of plaintiff’s property rights and that no consideration of public health, peace, morals, safety or welfare requires that plaintiff be prohibited from using said upper stories of said structure for the housing' of two family-units on said west 112 feet of said Lot 69 and for the housing of two family units on said west 112 feet of said Lot 70.” The findings clearly support the judgment. As seen, there are many other multiple dwellings as well as a business district in the vicinity. The property in the rest of the block and the instant property in relation thereto as viewed by the trial court could point to the conclusion that it was impracticable and unreasonable to confine its use to single family dwellings. Most of the buildings in the area have been erected within the last four years. Changes have occurred in the neighborhood and especially immediately adjoining the property in question. The evidence supports the findings of the court inasmuch as the trial court viewed the property and its surroundings. *348 The observations of a trial judge in viewing the premises or scene of the controversy is evidence in the case upon which findings may be based. (Neel v. Mannings, Inc., 19 Cal.2d 647 [ 122 P.2d 576 ]; Gates v. McKinnon, 18 Cal.2d 179 [ 114 P.2d 576 ] ; Ethel D. Co. v. Industrial Acc. Com., 219 Cal. 699 [ 28 P.2d 919 ] ; People v. Milner, 122 Cal. 171 [ 54 P. 833 ] ; Gastine v. Ewing, 65 Cal.App.2d 131 [ 150 P.2d 266 ]; MacPherson v. West Coast Transit Co., 94 Cal.App. 463 [ 271 P. 509 ]; Vaughan v. County of Tulare, 56 Cal.App. 621 [ 205 P. 21 ].)

Defendant asserts, however, that the several factors contained in the findings do not support the judgment. First, it claims that the fact that property used for business adjoins residence property does not make the zoning ordinance invalid (Acker v. Baldwin, 18 Cal.2d 341 [ 115 P.2d 455 ] ; Reynolds v. Barrett, 12 Cal.2d 244 [ 83 P.2d 29 ]; Feraut v. City of Sacramento, 204 Cal. 687 [ 269 P. 537 ]; O’Rourke v. Teeters, 63 Cal.App.2d 349 [ 146 P.2d 983 ]; Kort v. City of Los Angeles, 52 Cal.App.2d 804 [ 127 P.2d 66 ] ; Smith v. Collison, 119 Cal.App. 180 [ 6 P.2d 277 ]). In the Baldwin and Feraut cases the attack was a general one upon the whole ordinance. In the other cases there was either an affirmance of the trial court’s judgment or the physical circumstances were not the same. Second, that nearby boulevards do not invalidate single family dwelling ordinances, citing O ’Rourke v. Teeters, supra, and Zahn v. Board of Public Works, 195 Cal. 497 [ 234 P. 388 ], and third, that the existence of other property not conforming to the ordinance or to which a variance has been allowed is not sufficient to void the ordinance. (See Rehfeld v. City etc. of San Francisco, 218 Cal. 83 [ 21 P.2d 419 ]; Feraut v. City of Sacramento, 204 Cal. 687 [ 269 P. 537 ]; Magruder v. City of Redwood, 203 Cal. 665 [ 265 P. 806]; Brown v. City of Los Angeles, 183 Cal. 783 [ 192 P. 716 ] ; Otis v. City of Los Angeles, 52 Cal.App.2d 605 [ 126 P.2d 954 ]; Harris v. City of Piedmont, 5 Cal.App.2d 146 [ 42 P.2d 356 ] ; Ex parte Ruppe, 80 Cal.App. 629 [ 252 P. 746 ].) However, it is unquestionably true that “No one factor determines the question of what is practical difficulty or unnecessary hardship, but all relevant factors, when taken together, must indicate that the plight of the premises in question is unique in that they cannot be put reasonably, to a conforming use because of the limitations imposed upon them by reason of their classification in a specified zone. ’ ’ (Brackett v. Board of Appeal of Building Department, *349 311 Mass. 52 [ 39 N.E.2d 956, 961 ].) [Emphasis added.] Considering all of the factors present in the instant case combined with the information obtained by the court in its view of the premises, it cannot be said that it was not justified in finding that the enforcement of the ordinance as to the property here involved would have been arbitrary and unreasonable, and therefore invalid. A case closely analogous is Skalko v. City of Sunnyvale, 14 Cal.2d 213 [ 93 P.2d 93 ]. There plaintiff’s property zoned as residential was located near railroads and a cannery and farm property. This court reversed a judgment of the trial court which denied relief. The court said at page 216: ‘ ‘ Considering all of the facts shown by the record, it clearly appears beyond question that the land owned by the appellant is entirely unsuited for- residential purposes. The adjoining cannery with the continuous noise which must necessarily result from twenty-four hour operation, creates a situation similar to that which is found in the industrial part of a great city. Certainly, no one wants to live next door to a large factory, and the question whether any consideration of public health, peace, safety, or general welfare justifies the continued restriction upon the appellant’s property which prohibits its use for commercial purposes is not fairly debatable. In its application to the land owned by the appellant, the ordinance is void.” Likewise, in the instant case the court could have, from all the circumstances as developed in the evidence and its view of the premises concluded, as it did, that plaintiff’s property was not suitable for single family structures.

The majority decision is bottomed upon the erroneous premise that merely because plaintiff violated the ordinance he is not entitled to claim that it is unconstitutional as applied to him, or stated another way, that the unconstitutional hardship of the ordinance as applied to him was brought about by his violation of the ordinance. Manifestly, it is wholly immaterial whether plaintiff violated the ordinance or not. If it was, as the trial court determined, unconstitutional as applied to him, it was in effect no law and he was justified in ignoring it. He could have obtained an injunction restraining its enforcement as to him or taken the chance of the validity of his contention of unconstitutionality and refused to comply with it. The erection of multiple family dwellings by him was not the reason that the ordinance was invalid as to him. As above pointed out there are many other *350 multiple dwellings in the immediate vicinity as well as a business district. Changes have occurred in the neighborhood immediately adjoining plaintiff’s property. The judge of the trial court viewed the premises and concluded that to apply the ordinance to plaintiff’s property is unreasonable and arbitrary. He must be considered as having seen anything and everything that would point to and establish such unreasonableness.

It is conceded in the majority opinion that a zoning ordinance is unconstitutionally applied “where the use of adjacent property renders the land entirely unsuited to or unusable for the only purpose permitted by the ordinance” and “where a small parcel is restricted and given less rights than the surrounding property.” It cannot be doubted that such is the situation here. At least the trial court may, from its observation, have concluded that those conditions existed. While the property in question is not wholly surrounded by business and multiple dwellings it is substantially in that situation. The majority opinion overlooks the existence of many multiple family dwellings in the area even though the “business district” may be only a spot zone.

. The majority opinion dwells on the ideas that “Zoning necessarily involves boundary problems and, when ‘spot’ zoning is permitted in a residential district, the legislative body must determine where the boundary is to be placed, attempting, as far as possible, to minimize the resulting inconveniences. This is essentially a legislative problem, and the determination may be attacked only if there is no reasonable basis therefor. Often there may be little difference in the character of the property on either side of the line, but such a showing will not justify a judicial alteration or extension of the boundaries[Emphasis added.] The essence of these statements is that the nature of adjoining property has no bearing upon the validity of the application of an ordinance to particular property. That is squarely contrary to the holding of this court in Skalko v. City of Sunnyvale, 14 Cal.2d 213 [ 93 P.2d 93 ], In that case a cannery was located near plaintiff’s property which was zoned for residences. Even though the question presented was merely one of boundaries this court reversed the trial court and held the zoning ordinance was invalid as applied to plaintiff’s property because with the nearby cannery it was not feasible to use it for residential purposes. This court stated: “Where the exercise. of *351 that power results in consequences which are oppressive and unreasonable, courts do not hesitate to protect the rights of the property owner against the unlawful interference with his property.” [Emphasis added.] Likewise in the instant case the use of the property in question for single family dwellings is not feasible or practicable because of the surrounding circumstances and change in the neighborhood. The property is no longer adapted to that purpose and to compel the plaintiff to make only such use of it is “oppressive and unreasonable.”

Finally, it is argued in the majority opinion, and that thought is probably the decisive factor, that: “The courts cannot write the zoning laws and cannot say that the legislative body has. erred in drawing the lines of the districts, or in restricting the territory devoted to business or to multiple dwellings, unless there is a clear showing of abuse of legislative discretion, i. e., that the restrictions are unreasonable. ’ ’ That is to say, it is a legislative question whether the ordinance is being applied unreasonably. That is not true. If it were true, the courts could not declare that as to certain property the ordinance cannot constitutionally apply. In Reynolds v. Barrett, 12 Cal.2d 244, 250 [ 83 P.2d 29 ], this court, after referring to the presumptions in favor of the constitutionality of a zoning ordinance generally, stated: “This holding, however, is not decisive of the issues here presented. ... It is obvious that by a zoning ordinance a city cannot unfairly discriminate against a particular parcel of land. If the general scheme of zoning is sound and valid, nevertheless the courts may properly inquire as to whether the scheme of classification and districting has been applied fairly and.impartially in each instance.” [Emphasis added.] And in Rubin v. Board of Directors, 16 Cal.2d 119, 126 [ 104 P.2d 1041 ], the court declared that although the denial by the local planning commission of an application for a variance from the ordinance is not reviewable in the courts, “the finality of the board of directors’ determination does not bar the respondents from asserting in a judicial proceeding that the zoning law is unconstitutional as applied to their property.” [Emphasis added.] Moreover, the legislative body cannot be said to have exercised its judgment with respect to the propriety of the ordinance as applied to plaintiff’s property. Circumstances have changed and that body has *352 not reconsidered the ordinance in the light of the changes. It has merely done nothing.

The effect of the majority opinion in this case is to commit to the legislative body the solution of all questions of both fact and law which arise when a zoning ordinance is attacked for unreasonableness in its application to certain property unjustly affected thereby. This is contrary to the rule which has been uniformly followed in the prior decisions of this court hereinabove cited and discussed. The decision of the trial court is in accord with these decisions and should therefore be affirmed.

Shenk, J., concurred.