Opposition Brief — Lockard v. Los Angeles

SUBJECT INDEX

PAGE

SiTTTITIITIT. asssonseseeicshatiiteihiinsapsennabsncteneaniocicatiinetsniciinamntnectbeiaianiiees 1

I 2

SET TE: WIIUIN i ssticiesnlids iccincthansnishstepeensenieteiacilcbaaniibantbctibueks 10

STII: (claihaehcibstascdit lade picetaencincelecectetiaaietianaasitacenteiteesiinc aiaaiatal 11

Point I. The question of infringement of rights protected by

the Federal Constitution was not properly raised in the

SIT ANION “thsi opiccintiebaisteintlietiietihdeenehiaiitedaitldaeeaniiaaiaisceies 11

Point II. Petitioners’ claim of error on the part of the Cali-

fornia Supreme Court in reviewing the entire record relates

Pe OTE SU SI as cnirnsnsnenttietiideialidlacaoiensdlac ncesase 13

Point III. Petitioners are in effect requesting a review and

evaluation of conflicting evidence... eco cocccec cece eeeee 15

I ieee 16

TABLE OF AUTHORITIES CITED

Cases PAGE

Capitol City Dairy Co. v. Ohio, 183 U. S. 238... ecccecceceeecnesnees ll

Greenough v. Tax Assessors of City of Newport, 331 U. S. 486 14

Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S.

287 —

Miller v. Strahl, 239 U. S. 426...................... e 11

Railway Express Agency v. New York, 93 Adv. Op. (L. Ed.)

\ iiechateiaisbinllsienasanenieius 15

Yazoo & M. V. R. Co. v. Adams, 180 U. S. Le... 14

STATUTES

California Constitution, Art. I, Sees. 12, 13, 14, 21.2... 12

United States Constitution, Fifth Amendment.........00.00..0.000....... 11

United States Constitution, Fourteenth Amendments.................... ll

IN THE

Supreme Court of the United States

October Term, 1948.

No. 782.

CHARLES C. Lockarp, Ray Myre, W. E. Ropertson,

et al.,

Petitioners,

US.

City oF Los ANGELEs, et al.,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI.

Foreword.

Respondents respectfully submit that the substance of

the petition for the issuance of a writ of certiorari in this

cause relates to matters of local practice, and is an attack

upon the decision of the State Court which is based upon

conflicting evidence. These are matters which this Hon-

orable Court has declared on numerous occasions that it

will not consider.

tarts mason

idle

Statement of the Case.

The complaint [Record pp. 1 to 24] is in two counts.

The first cause of action complaims of petitioners’ prop-

erty being placed in a commercial zone (C-2) because

their property is suitable only for light manufacturing

purposes such as are permritted in the M-l zone. The

second cause of action is based upon a refusal of the City

Planning Commission and the City Council to change the

zoning of their property from C-2 to M-1.

The petition for certiorari alleges, on page 4, that:

“* * * petitioners brought this action in the Su-

perior Court, contendiag that the ordinance insofar

as it applies to petitioners’ property was discrimina-

tory, confiscatory and unconstitutional; that it was

depriving the petitioners of their property without

due process of law, in violation of Amendments V

and XIV of the Constitution of the United States

and Sections 1 and 14 of Article I of the Constitu-

tion of the State of California.”

Examination of the complaint [Record pp. 1 to 24] dis-

closes numerous allegations such as,

“said action on the part of the City Council is con-

fiscatory in nature and is depriving the plaintiffs of

the use of their property without due process of law”

{ Par. XXIV, Record p. 8, fol. 13]; “that if the said

property is mot zoned ‘M I’ or they are not permitted

to use their property for light manufacturing pur-

poses, their property will in effect be confiscated, as

said property is unsuitable for any other use or pur-

pose whatsoever” [Par. XXV, Record p. 9, fol. 13];

“that such refusal on the part of said Boards and

said Council to permit the plaintiffs to use said prop-

ealitiews

erty as prayed for in their petitions and in their ap-

peals is divesting and depriving the plaintiffs of the

use of their property and of their constitutional

rights” [Par. XXIX, Record p. 10, fol. 14]; “that by

adopting the maps submitted by the Planning Com-

mission and zoning a portion of Jefferson Boulevard

immediately adjacent to the property in question as

Zone ‘M-1’ and refusing to grant similar rights to the

plaintiffs, was arbitrary and was a discrimination

against the plaintiffs” [Par. XXX, Record p. 10, fol.

15]; “that the ordinance * * * is depriving the

plaintiffs of a valuable property right and is dis-

criminating against the plaintiffs, and that said ordi-

nance is void and unconstitutional” [Par. XXXIV,

Record p. 11, fol. 16]; “that the enforcement of the

ordinance * * * deprive the plaintiffs of vested

property rights” [Par. XXXVI, Record p. 11, fol.

17]; “that the defendants * * * attempting to limit

the use to which plaintiffs can put their property by

the ordinance * * * isa violation of the constitu- |

tional rights of the plaintiffs and divests plaintiffs of

a substantial property right” [Par. XXXVII, Record

p. 11, fol. 17].

The only reference in the complaint to the Constitution

of the United States is found in paragraphs XL and XLI

[Record pp. 12-13, fols. 19-20]. These two paragraphs

are as follows:

“XL.

That the ordinance and ordinances of the City of

Los Angeles insofar as it limits the plaintiffs in the

use of their property for light manufacturing pur-

poses and prevents the plaintiffs from the use of their

property for light manufacturing purposes and for

any other use other than as permitted in Zone ‘C2’

eainas

is void and unconstitutional and deprives the plain-

tiffs of the use of their properties without due process

of law, and is contrary to the Constitution of the

State of California and the Constitution of the United

States of America, and deprives the plaintiffs of

vested property rights, and deprives the plaintiffs of

the use of their property for lawful purposes con-

trary to the guarantee provided by the Constitution of

the State of California, and the Constitution of the

United States of America; that such ordinances, in-

sofar as they restrict the plaintiffs in the lawful use

of their property and the use of their property for

light manufacturing purposes, is in violation of the

constitutional guarantee of the plaintiffs, and such

ordinances are void, unconstitutional and unenforce-

able.”

“XLI.

That such ordinances in preventing the plaintiffs

from the use of their property for light manufactur-

ing purposes, while permitting the use of other simi-

lar, adjoining, surrounding and adjacent property

as that of the plaintiffs for light manufacturing pur-

poses and the purposes to which the plaintiffs desire

to use their property, are unfair, unjust, and such

ordinances are void and unconstitutional and deprive

the plaintiffs of rights granted to other property

owners adjoining, surrounding and adjacent to the

property of plaintiffs, and is in direct violation to the

Constitutional guarantee of the Constitution of the

State of California and of the United States of

America.”

No reference is made to the United States Constitution

in the Findings of Fact and Conclusions of Law | Record

pp. 30 to 44]; nor in the judgment entered by the trial

court [Record pp. 45 to 48].

~

It is not claimed by petitioners that the California Su-

preme Court has not correctly stated the evidence upon

which it arrived at the conclusion that the ordinance

should be sustained as a valid legislative enactment. The

gist of petitioners’ contention is disclosed by the following

excerpt from their brief filed in support of their petition:

“Tt would appear that the Supreme Court of Cali-

fornia reasoned that, notwithstanding the trial court’s

findings of fact which were amply supported by the

evidence that there was no debatable question, it had

the right to review the facts and reach its own con-

clusion that the question of the reasonableness of the

ordinance was debatable; that therefore it would hold

this ordinance valid since its validity was reasonably

debatable.” (Pet. and Br. p. 10.)

Petitioners’ statement of the “Questions Presented”

(Pet. and Br. p. 5) contains, in both “Question 1” and

“Question 3,” reference to the existence of “conflicting

evidence.”

In view of the limited issues thus presented, reference

need only be made to the facts as stated in the opinion of

the California Supreme Court, upon which it concluded

that the reasonableness of the zoning regulations was not

beyond the realm of legitimate debate and that therefore

the ordinance should be upheld.

The opinion of the California Supreme Court [Record

pp. 159 to 179] after reviewing the evidence in consider-

able detail, states:

“It appears from the record in the present case

that there are undisputed physical facts which sup-

~

port the action of the planning commission and the

city council in refusing to extend the boundaries of

the M-1 zone. The maps introduced in evidence

show clearly and graphically that both the industrial

and commercial zones are small in comparison with

the surrounding residential areas; that the industrial

zone is located at one end of a long narrow strip

zoned for light commercial uses designed to serve the

residential areas; and that the present industrial area

is bordered by a railroad which does not extend along

the commercial zone but runs diagonally away from

it. Also, most of the property south of the M-1 zone

is publicly owned and occupied for school and play-

ground purposes and is not available for private use,

whereas all the property surrounding the C-2 strip is

residential in character and fairly well developed.

The legislative body was entitled to consider the fact

that any extension of the industrial zone would not

only tend to impose added burdens on the surround-

ing residential areas and create undesirable conditions

such as noise, smoke, and heavier traffic, but might

tend to displace the existing commercial uses, and to

force those uses, in turn, to encroach upon the resi-

dential areas.

[Fol. 273]: “The problem thus presented to the

planning commission and city council was essentially

that of determining where to draw the lines of de-

marcation. Plaintiffs here are not merely seeking

to obtain reclassification of a number of scattered

parcels, but rather are attempting to increase the M-1

area to encompass an entire additional twelve-block

district, including both their own properties and the

properties of many persons not made parties to the

action. Whether an industrial area should be so in-

creased in size, and whether certain types of business

uses may be permitted in sections immediately adja-

cent to residential areas, while manufacturing and

industrial or other uses are prohibited, is primarily a

matter of legislative concern and involves determina-

tions not only of facts with respect to existing con-

ditions in an area, but also of policy and opinion as

to its future development. (See Sunny Slope Water

Co. v. City of Pasadena, 1 Cal. 2d 87, 93.) Accord-

ingly, in the present case, whether the twelve-block

strip was suitable for commercial uses or only for

light industrial purposes, whether its development

would be unduly hampered by the regulations, and

whether the welfare of the surrounding residential

areas would be enhanced by those regulations were

all questions addressed to the legislative authorities,

and their decision cannot be disturbed if the matters

are fairly debatable. * * *

“For the same reason the finding of the trial court

that the area on Jefferson zoned M-1 is similar and

identical to the area zoned C-2 is not controlling on

the issue of the reasonableness of enacting the or-

dinance. It is well-established that similar character-

istics in adjacent and surrounding areas do not neces-

sarily preclude the zoning authorities from placing

adjoining territories in different zones or justify a

court in substituting its judgment for the legislative

decision. (See Reynolds v. Barrett, 12 Cal. 2d 244,

249; Feraut v. City of Sacramento, 204 Cal. 687, 693;

Ex parte Hadacheck, 165 Cal. 416, 422; Brown v.

eet 2

a

City of Los Angeles, 183 Cal. 783, 787.) Moreover,

the two zones were not identical in that the record

and the findings show that the surrounding areas are

different. It is true that similar properties lie to the

north of the two strips of property, although a more

substantial portion of the land lying to the north of

the C-2 strip was zoned solely for single family

dwellings. The properties lying to the south, how-

ever, are decidedly different. The M-1 zone, being 0

bordered by a railroad track, is more adaptable to

industrial use, and almost all of the property imme-

diately across the railroad track is devoted. to public

school and playground uses. On [fol. 276] the other

hand, the C-2 strip is not bordered by the railroad

and, except for about three blocks (one zoned M-1l

and two zoned C-2), all of the property to the south

is residential in character. Most of it is zoned for

single family dwellings, and a large portion of it is

in use only for residential purposes. * * * [ fol. 277]

The only conflict in the evidence is to be found in

the opinions of the witnesses as to future develop-

ment of the property and as to the effect on sur-

rounding territory of its use for various purposes.

A commercial district of this type is necessarily

limited as to expansion by the development of the sur-

sounding area, and the fact that the district has de

veloped slowly is not determinative of the reasonable-

ness of the restrictions, since one of the bases for

zoning regulations is the guidance of future develop-

ment for the protection of residential areas. (See

Sunny Slope Water Co. v. City of Pasadena, 1 Cal.

2d 87, 93.) To be effective, zoning regulations must

—o-

necessarily look to the future, and in determining

what uses should be permitted in the twelve-block

strip, the legislative body was, of course, entitled to

consider the effect of such uses on the surrounding

areas, and to weigh the possibility of injury to those

areas by reason of permitting various types of ac-

tivity as against the desirability of allowing such

uses. In view of the various factors involved and

the testimony of the experts, it is clear that the pro-

priety of restricting the twelve-block strip to C-2 uses

and its suitability for such uses were reasonably de-

batable, and it cannot be said that the regulations

were tunreasonable or arbitrary. * * *

“As we have seen, the problem presented to the

zoning authorities in the present case was essentially

that of determining where to draw the lines of de-

marcation between different zones. Various prob-

lems of wisdom and necessity are involved in such a

determination, and, although there were a number

of factors which, when considered together, might

have justified an extension of the M-1 zone to em-

brace the twelve-block area, there are undisputed phy-

sical facts in the record which support the action of

the planning commission and the city council in plac-

ing the strip in a C-2 zone. It is, therefore, apparent

that the reasonableness of the zoning ordinance was

fairly debatable, and it cannot be held that the zon-

ing authorities acted arbitrarily.”

alien.

Summary of Argument.

Respondents respectfully submit that for the reasons

outlined this Honorable Court should deny the petition

for certiorari filed in this cause.

A.

bo

The question of infringement of rights protected by

the Federal Constitution was not properly raised in

the State Courts.

The asserted error of the California Supreme Court

in disregarding the findings of the trial court based

on conflicting evidence and examining the entire

record in arriving at its decision relates to a matter

of State practice exclusively, as to which this Hon-

orable Court will not concern itseif.

The claim of error on the part of the California

Supreme Court in upholding the validity of the or-

dinance is, in the light of the record, nothing more

than a request that this Honorable Court evaluate

the evidence introduced and arrive at an independent

decision as to its sufficiency.

—j]]—

ARGUMENT.

POINT I.

The Question of Infringement of Rights Protected

by the Federal Constitution Was Not Properly

Raised in the State Courts.

| As pointed out in the foregoing statement of the case,

| no mention of the Fifth or Fourteenth Amendments to the

Constitution of the United States was made, either

in the complaint or in the findings of fact and conclusions

of law, or in the judgment of the lower court.

To allege that an ordinance is void and unconstitutional

or in violation of the Federal and State Constitutions is

not sufficient. In the first place, this Honorable Court is

not concerned with the question of asserted conflict with

the State Constitution. (Muller v. Strahl, 239 U. S. 426,

431.) As to a claim of infringement of rights guaran-

teed by the Federal Constitution, it is necessary that the

particular clause of the Constitution of the United States

relied upon be designated. (Capitol City Dairy Co. v.

Ohio; 183 U. S. 238, 248, 249.)

The Constitution of the State of California requires

that “all laws of a general nature shall have a uniform

operation”; that “no person shall * * * be deprived

of life, liberty or property without due process of law”;

that “private property shall not be taken or damaged for

public use without just compensation having first been

made to, or paid into court for, the owner” ; “nor shall

any citizen, or class of citizens, be granted privileges or

immunities which, upon the same terms, shall not be

MS

a

granted to all citizens.” (Cal. Const., Art. I, Secs. 12,

13, 14, 21.) In short, the guarantees of the Constitution

of the State of California and of the United States are

substantially the same in these respects. Respondents feel

that they may assert with confidence that the courts of

California are ever zealous in protecting the constitutional

rights of the individual and look to this Honorable Court

for guidance in the interpretation and application of con-

stitutional provisions. However, in practice and generally

speaking, no specific reliance or consideration is given to

the Constitution of the United States as distinguished

from the Constitution of California in determining wheth-

er a statute or ordinance constitutes an unreasonable

exercise of the police power or is discriminatory, as the

applicable guarantees of both constitutions are substan-

tially the same.

Under such circumstances, it is all the more evident

that the question of infringement of rights guaranteed by

the Federal Constitution was not raised in the State

Courts by petitioner in the manner required in order to

invoke the jurisdiction of this Honorable Court.

—13—

POINT II.

Petitioners’ Claim of Error on the Part of the Cali-

fornia Supreme Court in Reviewing the Entire

Record Relates to a Matter of State Practice.

Petitioners’ statement of the questions presented ( Pet.

and Br. p. 5) sets forth as the first question the right of

a reviewing court to ignore the findings of fact of the

trial court made on conflicting evidence, and as the second

question substantially the same inquiry, namely, must the

Supreme Court of California conclude as a matter of law

from the finding: made by the trial court that the ordi-

nance as it affects petitioners’ property is arbitrary, con-

fiscatory, discriminatory and therefore unconstitutional.

“Question 3” appears to fall within the same general

category.

With regard to the matter of the trial court's findings

being controlling on the appellate court, the California

Supreme Court stated in the opinion, at pages 166 and

167 of the Record [fols. 269-271]:

“* * * The only function of the courts is to de-

termine whether the exercise of legislative power has

exceeded constitutional limitations. As applied to the

case at hand, the function of this court is to determine

whether the record (fol 270) shows a reasonable

basis for the action of the zoning authorities, and, if

the reasonableness of the ordinance is fairly debat-

able, the legislative determination will not be dis-

turbed. (Acker v. Baldwin, 18 Cal. 2d 331, 344;

Sunny Slope Water Co. v. City of Pasadena, 1 Cal.

2d 87, 94; Feraut v. City of Sacramento, 204 Cal.

687, 696; Jardine v. City of Pasadena, 199 Cal. 64,

72; Zahn v. Board of Public Works, 274 U. S. 325,

326; see Reynolds v. Barrett, 12 Cal. 2d 244, 249.)

=

“The findings and conclusions of the trial court as

to the reasonableness of a zoning ordinance are not

binding on an appellate court if the record shows that

the question is debatable and that there may be a

difference of opinion on the subject. The appellate

courts look beyond such determinations and consider

in some detail the basic physical facts appearing in

the record, such as the character of the property of

the objecting parties, the nature of the surrounding

territory, the use to which each has been put, recent

trends of development, etc., to ascertain whether the

reasonableness of the ordinance is fairly debatable.

(See Wilkins v. City of San Bernardino, 29 Cal. 2d

332, 338-339; Acker v. Baldwin, 18 Cal. 2d 341, 344;

Hurst v. City of Burlingame, 207 Cal. 134, 143; cf.

Matter of Throop, 169 Cal. 93, 97-99.) Similarly,

findings which relate to matters of opinion and judg-

ment, such as that property is ‘suitable only’ for cer-

tain purposes, are not controlling. (Skalko v. City

of Sunnyvale, 14 Cal. 2d 213, 216; see Jardine v.

City of Pasadena, 199 Cal. 64, 75.) As we have

seen, matters of this type lie within the discretion of

the zoning authorities, and their action will be upheld

if the question is fairly debatable.”

It is apparent that the California Supreme Court, in re-

fusing to be bound by the trial court’s findings merely fol-

lowed the declared State practice in this type of case. This

is a question which this Honorable Court will not review.

(Greenough v. Tax Assessors of City of Newport, 331

U. S. 486, 489; Yazoo & M. V. R. Co. v. Adams, 180 U.

oe

The same is true of the contention made at page 24 of

the petitioners’ brief that their motion to receive addi-

tional evidence made in the California Supreme Court

should have been granted,

if

POINT III.

Petitioners Are in Effect Requesting-a Review and

Evaluation of Confticting Evidence.

Aside from the fact that petitioners’ claim of error re-

lates to matters of State practice, what petitioners are

attempting apparently is to request this Honorable Court

to review conflicting evidence upon the reasonableness of

the ordinance.

The language found in Railway Express Agency v. New

York (decided January 31, 1949), 93 Adv. Op. (L. Ed.)

396, in sustaining a traffic regulation of New York City,

seems equally applicable to the case at bar, it being there

stated (at pages 398, 399):

“* * * We do not sit to weigh evidence on the

due process issue in order to determine whether the

regulation is sound or appropriate; nor is it our

function te pass judgment on its wisdom. See Olsen

v. Nebraska, 313 U. S. 236, 85 L. ed. 1305, 61 S. Ct.

862, 133 ALR 1500. We would be trespassing on

one of the most intensely local and specialized of all

municipal problems if we held that this regulation

had no relation to the traffic problem of New York

City. It is the judgment of the local authorities that

it does have such a relation. And nothing has been

advanced which shows that to be palpably false.”

In Milk Wagon Drivers Union v. Meadowmoor Dairies,

312 U. S. 287, it is pointed out that, while this Honorable

Court has the ultimate power to search the record in the

State Courts where a claim of unconstitutionality is effec-

tively made, it is not for it to make an independent valua-

tion of the evidence and it can reject the determination of

the State judiciary only if it can say that the evidence is

poe

=

sO unwarranted as to be a palpable evasion of such con-

stitutional guaranty. It was there said, at page 294:

“The place to resolve conflicts in the testimony and

in its interpretation was in the Illinois courts and not

here. To substitute our judgment for that of the

State court is to transcend the limits of our au-

thority.”

Conclusion.

It is respectfully submitted that the record in this case

shows that the proceedings in the California Supreme

Court do not disclose any just ground for complaint and

that no reviewable questions are presented by the petition

for writ of certiorari or the accompanying brief of peti-

tioners; and that the petition should be denied.

Respectfully submitted,

Ray L. CHESEBRO,

City Attorney,

BourKE JONEs,

Assistant City Attorney,

ROGER ARNEBERGH,

Assistant City Attorney,

By Bourke JoNgEs,

Assistant City Attorney,

Attorneys for Respondents.