Motion to Dismiss — Consolidated Rock Products Co. v. Los Angeles

ma."

ay Litsis arr es TH ta as. }

BUPREME ‘COURT. U. 5 rs

on AUG 31 1962

ass a ae F. DAVIS, CLERK

_Suprene ie ited ter

eieis gree Octosen Tex, 1962 a ;

No. 307.- ; J ane

. ae

CoNnsoLIDATED Rock Propucts ComPANY. and Vv ALLEY

. 9 REAL Estate CoMPANy, °

Oe ae | Appellants, er

ix vs.” i NC

City or Los ANGELES, | ae

4 - Appellee.

ON APPEAL FROM THE SUPREME COURT OF THE

STATE .OF CALIFORNIA,

MOTION TO DISMISS.

‘

7

‘

Rocer ARNEBERGH;

C ity Attorney,

- BouRKE JONES,

Assistant City Attorney,

. CLaupe E. Hicker,

Assistant sae Attorney,

400 City

' Los Angeles i: California,

_ Attorneys for Appellee, City of Los Angeles.

TABLE. OF AUTHORITIES CITED ¢

Cases * oe ‘PAGE

“Buck v. _ People of ‘i ‘State of California, 343 U. SS 99,

72S. Ct. 502,96 L. Ed. 775 essceesesecsssseeenntes ic iouisemeenbiences 13

Consolidated Rock pgeayee Copipuey, ete., et al. v. City of

Los Angeles, 57 A.C. Rep. 370 P. 2d 342... iin

'¢

' Euclid ¥. Ambler Realty peer 272, aes S. 365, 47 S. ‘Ct: a

lid, 71 L. EO. 303... --o-n-eeeeeeecesonsnnne ont ER nae ae beseeagennsssssee 10

: Goldblatt. v. Town of Hempstead 309 U. S. 590.. Sere aah

‘Scout 3 v. Superior “Court o California, 340 U:.S. 622,

71-S. Ct. 521, 95.L. Ed. 586.00... oneeecensstgnyrennencees schecadianes 13

-Sldeee v. Road. Improvement District No. 2, 266 uy. S. 175,

GDB ey Ai, a TE ies techcsignerevcctgnnsse mcrcsnionntingenn 14.

-*Lockard v. City of Los levee 33 Cal. 2d 453, 202 P. 2d i

38, cert. deri. 337 U. S. 939, 695 . Ct. 1516, 93 L. Ed. 1744 1

Miller v. . Board: of Pubke Ww orks, 195 Cal. 477, 234 Pace. 381,

app. dism. 273 U. S. 781, 47 5S. Ct. 400, 71 L. Ed. a.

Mugler v. Kansas, 123 .U. oe 8S. Ct. 273, 31 L. Ed.

ie ip vbvannons cee nlesihaicSpdcagaidieaacenid Cichedipaeallowsandi a ~ 1

Parker v. “McLain, 237 U.S. 469, 35 S. Ct. 632, 59 L. Ed.

ne UIRE Necatre nO LOSER Licisaosaiscdpitoniycatainaapebicannlin’ 9, 14

Robaison v; City of Log ‘Angeles, 146 Cal. App.-24 810, 304

RRR Rene, ridtciatasinitlaanaltan stn | 11’

Sproles v. Binford, 286 U. S. 374,.52 S. Ct. 581, 76 L. Ed.

ass ARORA aT E CS 10

; Stembetdese y. State of — 343 U.S. .54f, 72 a cm ;

834, 96 a. Ed. 1130.22: BS dna 2escee tee Mevevrande ores 13 ;

_ United States Fidelity & Guaranty Co. y. State of Oklahoma,

250 0. 8. 101, DS. Oe. 209; 6) L. Ed BR 14

. ; . ; - - my

. a ; Lf

; : Ps

e ¥ 4

tae

; Nalley Steamship ‘Co. v. Wattawa, 244 U. S..202, 37 s. Go:

- S28, G1 Le. Ed: VOB Agent ea ceecenec calcein dad hse

~ Zorach v. Clauson, 343 U.'S. 300, 72 S. Ct.’ 679, 96 L. Ed:

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he Court reiterates its expression of a

thorough and able preparation, present

by both sides in this-case. _

; 25, 1960. poe.

Pump ae

Judge of the Superior |

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: SUBJECT INDEX enn

“ PAGE @

Statement’ of facts 022.2... cececseeeeeeeee sesseneee het eO Te Sie 2

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ne F The judgment appealed from. rests upon an adequate non-

cae ss basis saceunseedentiebeputenstbpncessesnoveneer eventos sevesbecsevsstguetesietiees sodees 8

Aes | om tiga. .: |

The - instant appeal does not present a - substantial federal

OTTER | ao cticewssnoncsssncaies socatiinesncnencnioualejennitisecsicitien fotidleapionietisintd GO

Conclusion. .......... hcoovelipbniediuihocbeuttessenpetbatincenneentsstedcatnihinceitansdovc 14

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“ON APPEAL FROM sf SUPREME COURT OF THE

IN THE

Supreme Court of the United State

Ocroper Term, 1962

| Ras :

Rear Estate Company,

Appellfints,

2’.

City or Los ANGELES, + |

*

Appellee.

- STATE OF CALIFORNIA.

MOTION TO DISMISS.

The appellee, City of Los Angeles, a municipal cor-

poration,’ hereby moves to dismiss the appedl hereto-

fore filéd with this Honorable Court by Consolidated .

Rock Products Company and Valley Real Estate Com-

pany. Such motion is’ based upon the following

grounds: os wt

1. The judgment appealed from rests upon an ade-

quate non-federal basis.

2. The appeal does not — a substantial federal —

question.

The Jurisdictional Statement filed by appellants

herein wholly omits from its summation of facts sev-

< ir

_ Coxsoripatep Rock P KODUCTS C UMPANY and VALLEY .

ilies soa

eral very important facts which omissions it is neces-

sary to indicate and correct before we can properly dis-

cuss and elaborate upon each of our above mentioned

grounds in support of our Motion to Dismiss.

@ _ Statement of Facts.

The following statement of facts i$ based upon the:

Aactual statement of the .C alifornia Supreme Court, dis

set forth in its opinion (Consolidated Rock Products

Company, etc., et al. v. City of Los Angeles, 57 A. C.

Rep. 557: 370 P. 2d -342—Appendix A_ of ‘appellants’

Jurisdictional Statement). The facts stated therein were

essentially a reiteration of the findings of fact and

Memorandum’ Decision ‘of the trial court (Appendix

te 4 of appellants’ Jurisdictional Statement) and of the

factual summation of the District Couft of Appeal,

Second Appellate District (15 Cal. Rptr. 775—Appendix

B of ‘appellarts’: Jurisdictional Statement). For the

convenience of this Honorable @urt. references to por-

tions of, the Memorandum Decision of the trial court,

of the decision of the District Court of Appeal and of

the decision of the California Supreme Court will be

‘made eferring to the appropriate appendix and page

number within the appellants’ Jurisdictional Statement -

wherein those decisions are set forth.-

The present c Bi oversy arose when appellants re-

_ quested the City of Los Angeles to amend its zoning

laws so as to pertuit them fo conduct rock and gravel

extraction ‘operations upon the subject property in

addition tg the already permitted agricultural uses,

which ‘request was denied. Appellafts then instituted

the. present action seeking to have the city’s zoning

ordinance declared invalid and to enjcin the enforce-

,

. ” .

.

=

-

—3—

ment thereof insofar as it prohibited them from con- ’

ducting rock and gravel extraction operations upon the

subject property. Both the tria] court and the Califor-

nia Supreme Court ruled against appellants and upheld

the constitutionality of the applicable zoning regula-

tions. ‘ ‘

- The subject propetty consists of approximately. 348

“acres of land owned by appellant Valley Real Estate .

Company and leased to the appellant Consolidated Rock

Products Company. The subject property lies up-

stream from Hansen Dam in the San Fernando Valley

portion of the City of Los Angeles and i is in the cemer

of what is commonly known as the Tujunga Wash (App.

_A, p. la). Such’preperty is about two miles long in a

generally east-west direction and is divided approxi-

mately in the middle by Foothill Boulevard running a!

that point’ in a_generally north-south direction. The~

Tujunga Wash bounded on its northerly side by the

base of mountains and on its ‘southerly side by bluffs

of low hills,except for relatively narrow plateaus which

overlook it from both sides (App. A, p. 1a). tds

The subject property is zoned to permit primarily ag-

‘ricultural uses including the raising of anfmals (App.

A, pp. 2a and 15a). .The limited rock and gravel ex-

- traction operations which had previously been conducted

upon a small -portion of the subject property as a non-

conforming use had been voluntarily terminated in

about 1935 (App. A. p. 19a) and had not been termi-

nated by reason’ of the institution of the 1939 condem-

“nation proceedings for the adjacent Hansen Dim debris

basin by the Los Angeles County Flood Control Dis-.*’

trict as intimated by-appellants (Jur. St. pp. 5 and 6).

—_— = ae

Hansen Dam and its debris basin and recreation area

lie to the: west of the subject property at fe mouth of —

the Tujunga Canyon. Although appellants point out

thaother extraction ’ ‘operations are presently conducted

on other land adjoining the subject property” (Jur.

St. p. 7), they fail to point out that such other opera-

tions are limited to a relatively small-425 acre parcel of -

land on the south side of the z westerly portion of the

“subject property (and thus. far removed from the ad-

joining communities), that suchi 125 acre parcel is not

in the center of the wash like the subject property but is

- ina side pocket formed by the hills and thus its dust is

less subject to being stirred and carried by the winds in

the Tujunga Wash, that such operations have been con-

ducted since 1931, that such property is substantially

‘depleted and has a doubtful number of remaining years

of operation left, that’ all other rock and gravel oper-

ations in the T ujunga Wash have been confined to the

area downstream .irom Hansen Dam and that the

City of ‘Los Ang ‘les since 1946 has not granted ‘any

new rock and gra€el districts upstream from Hansen

(wherein lies the subject property) but, on the con-

trary, has specifically denied the application for the cre-,

ation of a new rock and gravel district upon. other -

premises upstream from Hansen Dam immediately ad-

jacent to the subject property (App. .A, pp. 2a and

17a). ,

The twin residential communities of Sunland and

Tujunga adjoin the subject property, the more heavily

developed portions of those communities lying- easterly

and southeasterly of the subject. property. Appellants

have again failed to mention. however. the further fact

that in recent years thie trend of development of these

: —_—5—=

communitits has been in a westerly direction‘toward the

subject property and along and upon the bluffs north-

erly and southerly thereof (App. A, p. 2a).

The California Supreme Court in its opinion specifi-

cally noted the findings of the trial court (App. A, pp.

~ 3a and 4a) that “the Sunland-Tujunga area has a-na-

tional reputation as a haven for sufferers from respi-

ratory ailments” (mentioned by appellants ) ; that such

area “is inhabited ‘by many-such sufferers” (not. men-

_tioned by appellants); that ‘a considerable portion of.

its economy is based upon such reputation” (not men-

tioned by appellants); that ‘a rock and gravel opera-

tion upon the subject property could advefely affect

the reputation of the Sunland- Tujunga area as a haven

for sufferers from respiratory ailments” (mentioned

by appellants) ;. and that “There “was substantial evi-

dence that even though operated with all possible safe-

guards. the extraction of sand and gravel from the stub-

ject property’ would still create appreciable quantities .

of dust, which would be carried by the prevailing winds

to the residences and sanitariums of Sunlagd and Tu-

.junga; that this dust would have a pe Poa effect

upon the sufferers from respiratory ‘ailments; and also

that such operations would adversely affect property

values in those communities” (not mentioned by appel-

lants). ’

The trial judge. after hearing all the evidence and ~~

after personally uiewing the premises and the sur-

rounding area first expressed his own view that. if’

strictly regulated. rock.and gravel operations could be

conducted upon the subject property with minimal detri-

mental effect upon the adjoining areas, but then specif-

ically forind that “reasonable minds might differ and

have differed” upon the various factors leading to such |

a conclusion ( App. 4 A, _p-3a) and ‘therefore refused to

substitute his own personal opinion for that of the city

legislative body and upheld the reft usal of phe city to re-

zone the subject property so as to permit rock and

gravd extraction operations thereon (App. A, p. 17a).

Although appellants have gone to great lengths in

their J isdictional Statement to suggest to this Court

that the C}

to misuse its/zoning authority to preserve the subject

of Los Angeles was somehow attempting

property as a “park” or “natural preserve” or “retard-

ing basin” in conjunction with Hafhsen Dam (Jur. St.

pp. 13 and 24) one need only to read: the pleadings,

the briefs and the decisions of the state courts in this

matter to see that this is.a desperation attempt to create

a false issue. Such an issue was never seriously urged

by appellants in the state courts nor did those courts

ever find any necessity to discuss or pass upon such-a

contention, The basie questions actually raised, dis-

cussed and answered in the trial and appellate courts be-

low were the following : 2a

1. Is the doctrine that where reasonable minds may |

differ as to the ‘propriety or necessity for particular

‘legislation, the court will not substitute its judgment

for that of the legislative body. applicable in testing the

validity of zoning legislation Which prolibits opera-

tions for the extraction of rock and gravel from land

4

.

s 7 Z .

+- om es ee awe aprenae eninle ee

~-- = which aMlegcally Tia He other economic “value? C.App. :\.

P a ° awn, 2

pp. 7%.) ,

\ Was there substantiab “evidence presented includ-

ing the porsible adverse ef feet of rock and gravel op- -

‘erations conducted on the subject property upon. the

health and’ welfare of the adjoining communities, to

support the legislative determinasion as to the neces- °

, sity, propriety“and reasonableness of retaining the sub-

~ ject. property in the agricultural zone and reiusing tu

permit reck and gravel extraction operations thereon >

(App. AL pp. Ya and 172.).

3.. Was there such a difference between the proposed

rock and gravel operation on the subject property and

“that being conducted on an adjacent parcel of properts

as to Ferurt he attygations of discrimination? CApp. .\

pp. 2a and Iva to 1a.)

’ Do the ordinance es which have applied and which .

. now pes to the “subject: property: prohibit Fockandt

‘gravel operations thereon) (or do. Ahey. “as-contended

by appellants. by. a series of exemptions explicitly ayer

mit such Gperations thereon)? (App » Pp. 1% an]

20a.)

- The California trial court and Supreme Court deter-

mined, and we submit correctly soo that the answer to

‘ each of the above question’ was “ves”, ; —_

The titan higpenied From Rests Upon an

Adequate Non-Federal Basis.

Appellants herein have stated the two questions which

they present to this Honorable Court (Jur. St. p. 5)

as:

“1. Whether zoning ordinances which alto-

gether destroy the worth of valuable land by

prohibiting the only economic use of which it is

capable effect a taking of real property without

compensation therefur in yiolation. vi the Due

_ Process Clause of the Fourteenth, Amendment?

“2. Whether zyping ordinances which alto- 3

gethet destroy the worth of valuable ‘land by pro- /

hibiting the only economic use of which it is capable,

where that use will not adversely affect the health;

safety or welfare of other persons or property, con-

stitute arbitrary and unreasonable exercises of the

state police power in vir Nati moot the Due Process

ee of the Fourteenth Amendment 7’

With respect to the first question. such question er-

roneously assumes that the Los Angeles zoning ordi-.

nances which place the subject’ property in an agricul-

o

tural zone “altogether destroy the: worth of valuable -

land”. Appellants forget that the trial court went to

great lengths to point out that because of its location

. in'an occasionally active wash, the land in question had:

no. other “economic” value than for rock and gravel

quarrying but specifically negated appellants’ allega-

tions that it had no other value af all (App. C. pp. 39a

and 40a). The California Supreme’ Court likewise

recognized this distinction and rec wgnized that the sub-

~~

ject property could be put to sonie use and had. some

value, althotigh “relatively small if not minimal,” other

than for reck and gravel operations (App. A, pp. Ia

" and-15z). ‘, Oo ara: hal

With respeet to the second question pased by appel-

lants, ii not only contains ‘the erroneous statement of

the first question as discussed above, but it. further

erroneously assumes that the proposed rock and gravel

extraction operation ‘will not adversely’ affect the

health, safety or welfare of other persons or property.”

Appellants pose ‘such question with apparent disregard

for the California Supreme Court. declarations that

“Theye was substantial evidence that even though oper-

“ated! with all possible sdfeguards, the extraction of sand

and gravel iromahe subject property would’ still create

_appreciable quantities of dust, which would be carried

by the. prevailing winds to the residences and ‘sanitar-

iums of Sunland and Tujunga; that this dust would

have a @umaying prectgieon-fe sufferers. from res-_

piratory ailments; and also that! such operations would

adversely alfect property valyes in those communities”

(App. A, p. 4a) and that “having found on substantial

evidence that the necessity and propriety, of .the legis .

‘lative action in this case is one upon which reasonable’

minds may differ. the trial court: properly found

favor of the ordinance’s constitutionality.” (App. A. p.

17a). Sa

Thus it can be seen that the ‘appellants’ claim of the

denial to them of Certain fede ral constitutional rights is

based upon their own, err: meontts assumptions of the facts

involvéd. | ;

As was steted “in “Parker 7. Mclain, 232 U. %. :

a) a0. S. c 1. 632, 30 1. Ed.-1051, a federal question

ef

resting on false assumptions is without merit and af-

fords no basis: for review by the United - -States ‘Su-.

preme Court.

We submit that in any event the opinion of thie Cali-.-

fornia Supreme Court on those non-federal factual

. questions discttssed above renders untitcessary ‘a specific

determination upon the federal questions urged: herein

by appellants and provides an adequate ie federal basis -

upon which the judgment \of the California Supreme |

Court may be sustained. -

The well settlg law in this colintry is that the validity

of legislation must be determined by the application to

the facts of the so-called “reasonable minds” test. This

was stated by the United States Supreme Court in the

early and leading zoning case of Euclid ‘v. Ambler

‘Realty Company, 272 VU. S. 305, (47 5S. Ct. awe 71°L.

Ed. 303) at page 388: ois :

“If the validity of the legislative classification

for zoning purposes be fairly debatable, the legis-

lative judgment must be allowed to control.”

¢

This: thought was reiterated in Sproles 7. ‘Binford,

286 U, S. 374 (52S. Ct. 581. 76 L.. Edu b16/), where

it was stated at page 388 that:

a)

debatable questions as to: reasonableness

are not for the courts but, for the legislature.” )

“This principle has been echoed and followed by state

courts throughout the nation in hundreds of zoning

decisions since those early declarations, including the

California courts.(Lockard v. City of Las Angeles, 33°

Cal, 2d 453, 461, 202 P. 2d 38. Petition ‘for Writ of

_Certiorari to the Supreme Court of Cafffornia denied—

337 U. S. 939, 69'S. Ct. 1516, 93 L. Ed. 1744; Miller

*

a | oe

v’. Boosid of Public Works, 195 : ‘al. 477, 490, 234 Pac.

38t, appeal dismissed—273 U, 5. 781, 47S. Ct. 400,

71 1. Ed. 889: Robinson ®% he of Los -Angeles- 146

Cal. App. 2d 810, 815, 304 P. 2d 814).

Whether the facts.in the present case’ were such that

reasonable minds might differ as to the necessity and”

propriety and. reasonableness SP the agricultural zoning -

of the subject property was purely’a factual determina-_

tion which was thoroughly argued and considered and:

ruled upon by the state courts in. the instant case ( App. .

A,.p. 17a) and was., we submit. determinative of the

case. or. = :

a % The fact that. as se ints contend, the prohibition

ot. the extraction of rock and gravel from the subject

_ property destroys the “econamie” value thereof is not

S Ware: determinative, No one contends .that rock and gravel

‘ees operations would net, be the most profitable use te which

7 ‘appellants could put the land. As the California Su-

preme Court pointed out, however, such ‘and - fds use

sanid value for other purposes, albeit * ‘relatively small”

(App. A: p. 15a ” In a similar case this court’ stated

in Goldblatt 7. Town of Hempstead, 369 U.°$.: SOD.

involvi ing the. -alidity of an ordinance pr hibiting dredg:

ing below ‘a certain depth;

~™,

ER, this ordinance is otherwise a por exercise

of the town’s police powers, the tact that it de-

prives th

property, of its Most de netic ial use does .

not render tunes mstitutional.”

_. Legislative restr tions tf protect the pubiic “health

‘ini safety were approved in Mugler w. Kansas, 123

U. S, 623 (8 S. Ct. 973.31 L. Ed. 205), wherein’

it was stated at pages O08 and.O69;

, ; \

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\ ° **

_ —12—

“A prohibition simply upon the use of property

for purposes that are declared, by valid legislation,

to be injurious to the ‘health, morals, or safety,

of the community, cannot, .in. any Just sense, be —

/ deemed a taking or an. appropriation of». prop-

/ erty for the public benefit. Such: legislation does

[: not disturb the owner in the. control or use of his

property for lawful purposes, nor restrict his right

to dispose Di it, but is only a declaration by the

State that its. use by any one, for certain ‘for!

bidden purposes, .is prejudicial to the ptblic’ in- _.

terests.... The power which the States have of

’ prohibiting such use by individuals of their prop-

erty as will be’ prejudicial to the health, the morals,

or the safety of the public is not—and, consistently

- with the existence and safety of organized society,

cannot be—birdened with the condition, that the

State must compensate such individual owners for

pecuniary losses they may sustain, by reason of :

‘their not being permitted. by a noxious use of their

property, to inflict injury upon the c mimunity.” r

It can readily be seen that the subject property, lo-

cated as it is in an active . wash, can be reasonably

zoned only for agricultural purposes and not at’ all for

residential, or commercial or manufacturing purposes.

At Teast it has some value for uses permitted in that.

zone, although “relatively small.” . It| would probably |

have no-value at all for uses permitted in the-other

three primary zones. It is apparent that appellants’ aa

difficulty arises, not from the soning of the «subject

property, but from the marginal nature and physiéal ’

characteristics of the land itself. We submit that the

law does not. require, as appellants contend, that they

Be rewarded for having acquired land of the most mar-

ginal sort by: ‘thereby being permitted to conduct their

extraction operation thereon irrespective ofits’ effect

upon the adjoining communities and: their inhabitants.

The. law is clear that the. United States’ Stipreme

Court will” not take jurisdiction of.a matter where’ the —

judgrient of the state court could be supported upen an-

adequate non- federal ground. (Stembridge v. State of

Georgia, 343 U, S. 341, 72S. Ct. 834, 96 L. Ed.

BS Buck a, People of the. State of California, 343

AD: Si ‘99, 72S. Ct. 502, 96 1 wee Rar fp Zorach v.

Clauson, 343 U./S. 306, 72 S.Ct. 679, 96 L.* Ed.

954; Hammerstein v. Superior Court of California,

340 U.S. 622, A-S—€t-521,-95 L- Ed.. 586). It is

submitted that adequate non-federal grounds exist in

.the instant case to support the judgment of the Cali

fornia Supreme Court and that this Honorable Court

Should , — refuse jurisdiction of and dispiiss this

apteal

II: | ‘ 2

The Instant Appeal Does Not Present: a

Substantial Federal Question.

<-Tt-is submitted that it is evident from a reading of ,

the pleadings in the trial court, ‘the briefs in the “ap-

pellate court and the decisions of the triat,and appellate

courts that the within matter Was tried and determined

primarily upon. the .factual issues. set forth -in para-

graph I, above, and that the questions involving | tHe

federal constitution urged by appellants herein were in-

cidental to the determination of such: factual isstes.

* is submitted that under such Circumstances such ques-

tions should not be considered substantial federal ques-

i

; oO ape aes

4 —14—

«tions upon which to base an appeal to this Honorable

Court’ (Parker v. Mclain, 237 U. S. 469, 35S.’ Ct.

632, 59 L. Ed. 1051; Zucht v. King, 200 U. S. 174,

43 S. Ct. 24, 67 L. Ed. 194; Valley Steamship Co. v.

Wattawa, 24 U. S. 202, 37 S. Ct. 523, Ol¢Ty Ed.

1084; United States Fidelity & Guaranty Co. v. State

of Oklahoma; 250 U.S, 111, 39 S. Ct. 399, 63 L. Ed.

8763 House v. Road Improvement District No. 2, 266 } .

U.S. 17 $55. Ct. @, 9 L. Ed. 229). ©

a \ * Conclusion. Jn)

~ . , e

* For each and\every of the teasons set forth above

ft is respectfully itted that the within appeal to

% this Horwrable C@urt should be dismissed.

Respectfully submitted,

Ana Rocer ARNERERGH,

* City Aterney,

Bourke Jones,

_Ashistant City aeaiouns

Craupe E, Hitker, ee

Assistant City Attorney, ~~ iy

- Attorneys hae’ Appellee, City of, Los’ re gs