# Motion to Dismiss — Consolidated Rock Products Co. v. Los Angeles > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0251%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss - **Published:** January 1, 1962 - **Citation:** 371 U.S. 36 ## Text 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: aa : a, . >. o! G ‘ | + ai Ree ie © Ay Y: . rs di s +; - . j ° . . . . . Lo) : ‘ . : . ; “se — . . - ‘ . . . ° cd a “ny - ‘:. r ° } . fp 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 | . é ? a ; - : SUBJECT INDEX enn “ PAGE @ Statement’ of facts 022.2... cececseeeeeeeee sesseneee het eO Te Sie 2 \ AL 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 \ +! . ; a, Wane N - “a “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- (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; , ; \ \ \ ° ** _ —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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0251%3A3. Public record. Not legal advice.