# Johnston v. City of Claremont > California Supreme Court · March 26, 1958 · 49 Cal. 2d 826 URL: https://www.frixlaw.com/law-library/cases/9846924 ## Case - **Full name:** PHILIP F. JOHNSTON Et Al., Plaintiffs and Appellants, v. CITY OF CLAREMONT Et Al., Defendants and Appellants - **Court:** California Supreme Court - **Decided:** March 26, 1958 - **Citations:** 49 Cal. 2d 826; 323 P.2d 71; 1958 Cal. LEXIS 273 - **Precedential status:** Published - **Opinion:** Dissent by Carter - **Judges:** McComb, Carter, Gibson, Traynor, Spence, Shenk, Schauer - **Cited by:** 69 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by Associated Home Builders of Greater Eastbay, Inc. v. City of Livermore, 18 Cal. 3d 582 (1976). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9846924 ## Opinion text CARTER, J. I dissent. Assuming ordinance No. 513 which placed a portion of plaintiffs’ property in a commercial zone (it had formerly been in residence and agricultural zone) was properly subject to a referendum, I believe that plaintiffs’ constitutional rights have been invaded by application to them of the basic ordinance No. 441 which zoned their property for residence and agriculture. Plaintiffs’ property lies along Foothill Boulevard, a highway which is not in the corporate limits of Clare- *843 mont. The trial court found: “[T]hat approximately 12,800 vehicles per weekday traverse at high speeds said Foothill Boulevard, also known as U. S. Highway 66, in front of plaintiffs’ said Boulevard Frontage, resulting in an almost continuous traffic roar therefrom which can be heard for more than 300 feet from said highway; that at all hours of the day and night an almost continuous stream of automobiles, trucks and passenger buses pass in front of plaintiffs’ said Boulevard Frontage in both an easterly and westerly direction and the speed, weight and volume of such traffic make the ground vibrate for a distance of at least forty feet from said Foothill Boulevard; that the volume of said traffic passing plaintiffs’ said Boulevard Frontage materially and substantially increases on week-ends and on holidays . . . said highway is not posted as a restricted speed zone by any signs whatsoever; that eastbound traffic upon said Foothill Boulevard travels in such an unrestricted speed zone for more than five miles immediately to the west of plaintiffs ’ said Boulevard Frontage; that said Foothill Boulevard east of the intersection thereof with Mountain Avenue is in a restricted speed zone and is posted by speed limit signs of thirty-five (35) miles per hour; that the said traffic conditions upon said Foothill Boulevard render plaintiffs’ said Boulevard Frontage more reasonably suitable and usable for commercial uses and purposes, as authorized and permitted in a C-2 Zone by the terms of said Zoning Ordinance No. 441, as amended, than for any other use or purpose. . . . “That it is true: that plaintiffs’ said property is now, and has been for many years, planted to citrus trees; that said vehicular traffic traveling upon said Foothill Boulevard emits a large volume of fumes, odors and gases; that said fumes, odors and gases emitted from said traffic upon Foothill Boulevard have progressively increased over the years; that as a direct and proximate consequence of said fumes, odors, and gases emitted from said traffic, the citrus trees along the northerly boundary of plaintiffs’ said Boulevard Frontage for a depth of approximately 100 feet have been killed, or the productivity of said trees has been adversely affected thereby and as a consequence thereof plaintiffs’ Boulevard Frontage is not reasonably suitable or usable for such agricultural purposes; that said traffic conditions render plaintiffs’ said Boulevard Frontage more reasonably suitable and usable for C-2 commercial uses and purposes, as such uses and purposes are authorized and permitted in a C-2 Zone by the Zoning *844 Ordinance No. 441, as amended, than for any other use or purpose. ‘ ‘ That it is true: that the property west of Mountain Avenue on the northerly side of Foothill Boulevard and across from plaintiffs’ said Boulevard Frontage, to a depth . . . (300) feet from the northerly side of Foothill Boulevard, is in the unincorporated territory of the County of Los Angeles and the same is in a C-l Zone under the terms of said Los Angeles County Basic Zoning Ordinance No. 1494; that said County C-l Zoned property on the north side of Foothill Boulevard is presently planted to lemon trees and was formerly a part of a large citrus grove extending northerly thereof ■ that said northerly balance or remainder of said former citrus grove is presently being subdivided for single family residences and such balance is presently owned by different owners than the persons owning said County C-l zoned property; that said County C-l zoned property across from plaintiffs’ said Boulevard Frontage is more reasonably suitable for commercial purposes than any other use or purpose and the same is being presently held by the owners thereof for sale for commercial uses and purposes . . . that there is no real or substantial difference between said property on the north side of Foothill Boulevard west of Mountain Avenue and plaintiffs ’ said Boulevard Frontage and by reason thereof plaintiffs’ said Boulevard Frontage is more reasonably suitable and usable for C-2 commercial uses and purposes, as such uses and purposes are authorized and permitted in a C-2 Zone by the terms of Zoning Ordinance No. 441, as amended, than for any other use or purpose. . . . “ [T]hat the property, to a depth of . . . (300) feet, situated in the unincorporated area of the County of Los Angeles and lying on both the northerly and southerly sides of Foothill Boulevard for a distance of several miles immediately westerly from plaintiffs’ said Boulevard Frontage, is zoned for C-l uses, as such uses are defined and permitted by the terms of said Los Angeles County Basic Zoning Ordinance No. 1494, as amended, and a substantial portion of such C-l property is actually used for said C-l uses; that the property immediately west of and adjoining plaintiffs’ said Boulevard Frontage has been for several years, and now is, used for the sale of new and used automobile trailers, all of which have been, and now are, exhibited for sale by outdoor display on said property under and pursuant to a special permit or exception granted to the owners thereof by the Regional Planning Commission *845 of the County of Los Angeles . . . that in addition to said trailer sales business there are other commercial and business uses presently being made and carried on upon the property lying on the south side of said Foothill Boulevard between plaintiffs’ said Boulevard Frontage and San Antonio Avenue on the West, all of which business uses are in the unincorporated territory of the County of Los Angeles and in the same block as plaintiffs’ said Boulevard Frontage, to wit, a gasoline filling station, a restaurant and a liquor store and that by reason of such uses and business being presently made and carried on, said property on the south side of Foothill Boulevard between plaintiffs’ said Boulevard Frontage and said San Antonio Avenue has a predominantly commercial character and aspect; that there is no real or substantial difference between said property in said unincorporated territory of the County of Los Angeles and plaintiffs’ said Boulevard Frontage and the said zoning of such other property, and the uses to which the same is put, as aforesaid, render plaintiffs’ said Boulevard Frontage more reasonably suitable and usable for commercial uses and purposes as authorized and permitted in a C-2 Zone by the terms of said Zoning Ordinance No. 441, as amended, of defendant City, than for any other use or purpose. “That it is true: that at all times since about the year 1895 the northeast corner of plaintiffs’ said Boulevard Frontage at the intersection of Foothill Boulevard and Mountain Avenue, consisting of a parcel of land of approximately 160 feet by 160 feet, both of said measurements being taken from the intersection of Foothill Boulevard and Mountain Avenue, has been, and now is, known as the ‘Reservoir Site’; that since about the year 1895 said ‘Reservoir Site’ has been used for a commercial purpose, to wit: for a reservoir for the storage and distribution of water for a number of users; . . . that in addition to said reservoir there has been since about the year 1930, and there now is, a water well and pumping plant upon said ‘Reservoir Site’ for the commercial production of water; . . . that said The North Palomares Irrigation Company has been at all times since 1930, and now is, engaged in the business of producing and distributing water originating from said well and pumping plant to numerous customers and users; that said well and pumping plant emit noises in the pumping of water from said well, which noises can be heard a distance of approximately 160 feet away; that the aforesaid reservoir upon said ‘Reservoir Site’ provide an *846 adequate and reasonable screen to any commercial activities which might be carried on upon plaintiffs’ said Boulevard Frontage; that the aforesaid uses made of and said activities carried on upon said ‘Reservoir Site’ render plaintiffs’ said Boulevard Frontage more reasonably suitable and usable for commercial uses as authorized and permitted in a C-2 Zone by the terms of said Zoning Ordinance No. 441, as amended, of defendant City, than for any other use or purpose. ‘ ‘ That it is true: that plaintiffs own all of the real property immediately adjoining and lying southerly of plaintiffs’ said Boulevard Frontage for its entire length and distance; that the use of plaintiffs’ said Boulevard Frontage for commercial uses would not reasonably tend to damage or otherwise materially adversely affect any property or the value thereof owned by any third person. ‘ ‘ That it is true: that the said Downtown Business District of defendant City, presently zoned for C-2 purposes by the terms of Zoning Ordinance No. 441, as amended, includes an area of approximately one and one-half blocks, bounded on the north by 4th Street and on the south by 3rd Street and on the west by Alexander Avenue and on the east by the alley one-half block east of Yale Avenue, in which one and one-half blocks substantially all of the property is developed and improved with residences excepting a service station on the northeast corner of 3rd and Yale Avenue; that the remaining portion of said Downtown Business District is substantially completely occupied by stores and business buildings on lots of a frontage of approximately 50 feet or less, all of which are owned by numerous owners thereof with only three small vacant lots therein; that the property surrounding and immediately adjoining said Downtown Business District is substantially all built upon with residences and other buildings; that plaintiffs do not own the premises upon which plaintiffs conduct their said automobile dealership business and plaintiffs lease the same from two different landlords....” Summarizing, plaintiffs’ property is not usable for either residential or agricultural purposes; it is surrounded by commercially used property; there is no room for expansion of commercial projects in the commercial zone in Claremont under ordinance No. 441, hence the business now there is granted a monopoly on the business activities in the community. Such constitutes a taking of property without due process of law and is unconstitutional. Plaintiffs are left with property which is worthless because they cannot use it *847 for commercial purposes by reason of the zoning ordinance and it is unusable for any other purpose. The only value of property lies in the present or prospective uses that may be made of it. The facts being as they are here, there is no conceivable basis for the exercise of the police power to accomplish a zoning objective. The police power in the zoning field may not be so exercised as to render a person’s property valueless. Indeed, no reason is even suggested how plaintiffs’ property could be limited to agriculture and residence uses here except to create a monopoly for that part of Claremont which is jointly zoned for commercial purposes. Not only do we have the finding of the trial court but the city council, after a hearing, came to the same conclusion in adopting ordinance No. 513. Certainly there was no reasonable basis for having plaintiffs’ property zoned for residential and agricultural uses, when the planning authorities of Los Angeles County zoned all of the property around plaintiffs’ as commercial. Thus such cases as Lockard v. City of Los Angeles, 33 Cal.2d 453 [ 202 P.2d 38 , 7 A.L.R.2d 990 ], are not in point. In fact they support the conclusion I have reached as it is there said: “. . . that zoning ordinances, when reasonable in object and not arbitrary in operation, constitute a justifiable exercise of police power. ’ ’ (Lockard v. City of Los Angeles, supra, 33 Cal.2d 453, 460 .) Under the reasoning in the Lockard case the class in which plaintiffs’ property was zoned was arbitrary and capricious and its reasonableness is not “fairly debatable.” The only time it was considered in the sense that a hearing was held was when ordinance No. 513 was passed which zoned plaintiffs’ property as commercial. There was no hearing during the referendum election and the close vote on the matter showed that the question was more than “fairly debatable.” The appellate court must, as Lockard says, “look beyond” the results of that election and determine the reasonableness of the zoning, giving consideration to the “character of the property,” the “nature of the surrounding territory,” the “use” to which it has been put and the “recent trends of development.” All those factors point to only one conclusion here: The property has no use or value for residence or agriculture; the evidence shows this without dispute and the court so found. It is aptly said in Pacific Palisades Assn. v. Huntington Beach, 196 Cal. 211, 216 [ 237 P. 538 , 40 A.L.R. 782 ]: ‘A municipality is not permitted, under the guise of regulating business and segregating it to a particular district, to grant a monopoly *848 to business establishments and enterprises already situated in unrestricted districts. (In re White, 195 Cal. 516 [ 234 P. 396 ].)” In Wilkins v. City of San Bernardino, 29 Cal.2d 332, 340 [ 175 P.2d 542 ], it is said that zoning ordinances are invalid “Where the restrictions create a monopoly,” “Where the use of adjacent property renders the land entirely unsuited to or unusable for the only purpose permitted by the ordinance,” (emphasis added) and “Where a small parcel is restricted and given less rights than the surrounding property, as where a lot in the center of a business or commercial district is limited to use for residential purposes, thereby creating an ‘island’ in the middle of a larger area devoted to other uses.” While Lockard and Wilkins upheld the validity of the zoning there, they did not involve a case such as we have here, where the use of the adjacent property renders the land unsuited for the limited uses imposed by the zoning. A case closely in point is Skalko v. City of Sunnyvale, 14 Cal.2d 213 [ 93 P.2d 93 ]. There plaintiff’s property was, as here, zoned residential, but it was near a large cannery which emitted noise and on a highway carrying heavy traffic and “As described by the appellant, his property consists of five acres upon which he had prune trees at one time. These trees were removed because of the insects which came over to them from the piled boxes of the cannery across the street, and there is now nothing on it but a barn and a house worth about $1,000.” (P. 215.) Similarly, here we have the noise and the lessened value of the property for agricultural uses. Holding the ordinance invalid the court said (p. 216) : “Considering all 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.” (Emphasis added.) The identical facts appear in the case at bar. I would therefore affirm the judgment on the ground that ordinance No. 441 is unconstitutional as applied to plaintiffs’ *849 property. This conclusion renders it unnecessary to determine whether ordinance No. 513 rezoning plaintiffs’ property to commercial uses was subject to referendum or otherwise valid and effective. Shenk, J., and Schauer, J., concurred. The petition of plaintiffs and appellants for a rehearing was denied April 23, 1958. Shenk, J., Carter, J., and Schauer, J., were of the opinion that the petition should be granted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9846924. Public record. Not legal advice.