*1 May No. 31126. [L.A. 1980.] BARBARA, and Respondent,
CITY OF SANTA Plaintiff al., BEVERLY ADAMSON et Defendants and Appellants.
Counsel &
Meaney Bycel, Benjamin Bycel Bruce William Plebuch for De- fendants and Appellants. Resneck, Okrand, Resneck, Reed & Fred Mark O. Rosen- A.
William Smerling Terry on behalf of as Amici Curiae Defendants baum and Appellants. Anthony Clough, City Attorney, Fischer, C. Assistant Frederick W. City Attorney, Deputy City Attorney, Kahan, for Plain- and James O. Respondent. tiff and (Los City Attorney Angeles), Wil- Pines, Claude E. Hilker and
Burt Attorneys, Hayes, City City Deputy Burge, Ann Assistant liam B. Beach), Attorney (Long Parkin, Attorney, Arthur Y. W. Robert *4 Greenberg, City Attorney City Attorney, Deputy Honda, Donald S. (Modesto), (San Buenaventura), City Attorney Elwyn Johnson, L. (Chula Vista), Attorney Lindberg, City George Marsh, William C. D. Attorney Stanley Remelmeyer, City (Monterey), City Attorney (Torrance), E. City Attorney (Marysville), Ruddick, Robert R. M. James Oaks), (Marina, Rey Attorney Wellington, City Witt, W. Del John (San City Attorney Dwight Diego), Worden, City Attorney and D. (Del Mar), Respondent. of Plaintiff and on behalf as Amici Curiae Opinion proclaims “All people. rights”,
NEWMAN, . .have inalienable J. I. The second sen in the first sentence article California Constitution “Among rights] enjoying. are . life and these [inalienable tence reads: happi pursuing obtaining. liberty,. possessing. property, . and and . . . . . privacy.”1 ness, and
Appellants argue
the trial court have violat-
Barbara and
that Santa
request
city,
rights
court,
ordered
on
ed those
because
requires,
comply
city
appellants
in the zone
which
with a
ordinance
occupants
together,
appellants
that all
individuals live
and other
where
family.
they
of a
in
reside be members
which
of houses like that
I,
and
are
nature free
people
1
as
“All
section
follows:
text of article
1The full
defending life
Among
enjoying and
rights.
these are
inalienable
independent and have
obtaining
pursuing and
property, and
protecting
and
liberty, acquiring, possessing,
privacy.”
safety, happiness, and
Field,
Co.
concurring
in Butchers’ Union
opinion o.
J.
Regarding “happiness” see
589, 592,
746, 754,
4 S.Ct.
L.Ed.
(1884)
111 U.S.
[28
v.
Co.
Crescent
unrestrained, except by
right
pursue
happiness
(“to
his
every
one the
secure
652]
(1905)
Cal.
laws”);
parte
[82
cf.
Drexel
impartial
Ex
just, equal, and
914, 918],
N.W.2d
“28.04.230 Family. individual, “1. An or related two more unit marriage legal together as adoption living single housekeeping a dwelling unit.. . . servants, “2. A of not to five group exceed excluding persons, living single in a together unit unit.” housekeeping dwelling The record shows that are of a in a appellants three residents house zone single-family where the minimum lot-size is one acre. They *5 other 24-room, individuals a of 12 form adults who live in a group 10-bedroom, 6-bathroom house owned The oc- by appellant Adamson. cupants are their late 20’s or 30’s and include a early business woman, student, a graduate biochemistry a tractor-business a operator, woman, real estate blood, a and lawyer, They others. are not related by marriage, adoption. moved
They into the house after it on acquired Adamson December 9, 1978, 1977. On February following warnings, city attorney order, sued for a temporary restraining preliminary injunction, per- and manent 7, 1978; A injunction. order was issued on March a restraining on preliminary injunction March 1978.
Appellants’ household illustrates the kind living arrangements pro- hibited 28.04.230, by (§ ordinance’s rule-of-five. subd. supra.) to They chose reside with each other when Adamson made it known she was with to looking congenial people whom share her house. Since
then, social, explain, have a they group become close econom- they ic, and commitments to each share psychological They expenses, other. chores, rotate and eat meals Some have who evening children together. (not Adamson) visit. Two have contributed over regularly including $2,000 to each the house and costs of this lawsuit. improving defraying Emotional the members each support provided by are stability other; enjoy recreational activities such as to Mexico they trip togeth- their
er; because of mainly to live together have chosen they compatibility. 6,231 environment, square feet of the house has
Regarding physical fence. It has off- trees and a and is hidden from the street space a wall around have built Appellants for at least 12 cars. parking street new, isolate them help and a part property private driveway of the no evidence of overcrowding though, houses. There is from neighbors’ arrived, did notice a number larger some neighbors after had appellants in the an understandable increase on the parked property of cars number of residents. that their as “a regard group family”
Appellants say they A composed several values of families. they conventionally seek share many per- does achieve concededly like theirs living arrangement It living. could needs served traditional practical sonal and definition It meets half of Santa Barbara’s family. termed an alternate It fails dwelling is “a unit unit.” single housekeeping because it residents, if are more requires meet the definition part servants, marriage,. to be related by than five and are not adoption. Restrictions
The Ordinance’s val- course, promote protect can, help be written to laws Valid *6 is whether that case The in this question life enhances. family ues that cer- members family who are not individuals to may deny kind of law enjoy. members family tain benefits “family” The words long. issue is 93 pages ordinance at
The phrases of various 85 times. Because least are used at “families” Barbara, that, appellants in Santa it appears are used the words which in a one- together to reside right denied are and their associates apartment a “garden dwelling, multiple-family or two-family, family, thereof.” combination or cabana or and “a trailer Other development,” (“the more include hotel their needs adaptable abodes possible tourist lodged”), who are of individuals abiding place temporary less tourists or by automobile temporarily (“designated court for...[use] thor- public on the to travel transients”), (“designed... auto trailer limit”). allowable speed maximum at the oughfares ordinance, then, to the reside might they together? Where according First, nowhere, if five or exceptions: with three less any Apparently masters, the others then could on perhaps them were as acceptable sign 28.04.230, (See which in defines as part as servants. any § excluding of not to exceed five servants..cf. persons, “group 28.04.180: “all servants and of such necessary employees family.” § here, of such been but legality appear clauses has not argued they equal present protection questions.)
Second, if could meet appellants the requirements of section 28.94.001 then they might obtain from the Planning Commission a con- ditional use permit to maintain a zone, house in boarding another (See unlike 28.94.030, where now reside. 17; subd. also § 28.04.100, stating house is boarding building where § meals “[a] lodging are provided compensation for six per- more and/or sons by pre-arrangement for definite periods.”) Third, for a they might apply variance pursuant to chapter 28.92 of (We the ordinance. discuss below this suggestion the city attorney, well as his house” “boarding suggestion.) restrictions,
Do the ordinance’s with those three exceptions, respect the commands of the California Constitution concerning people’s rights to enjoy life and liberty, possess and to property, pursue and obtain happiness and privacy? is White
Our leading precedent Davis on privacy Cal. 3d Cal.Rptr. 533 P.2d where this 222], court observed that course, “the relates, general concept an "privacy enormously (Id., broad and diverse field of personal action and belief....” 773-774; and pp. see fn. 10 “the regarding wide contexts in variety which the Bostwick, constitutional has privacy analysis been employed”; *7 A Taxonomy Privacy: Repose, Sanctuary, and Intimate Decision of 1447, (1976) “Prosser, torts, 64 Cal.L.Rev. 1450: aas on fo specialist cused his on analysis harm-causing activities that were proscribed rather than on to be zones The protected. Supreme [United States] Court rapidly outpaced his of the law of and a new summary privacy See too Atkisson at classification Kern attempt became necessary.” Housing County Authority 89, 98 Cal.App.3d [130 re Cal.Rptr. 375], adults.) ban unmarried against cohabiting “a statement words from in White v. these quoted The court Davis to the added provision ‘privacy’ the of the proponents drafted by [that in state’s election brochure” and included the California Constitution] left (13 774-775): of is the to be right “‘The pp. right privacy Cal.3d at It our protects interest. It and compelling alone. is fundamental emotions, our homes, our expressions, our our families, thoughts, our communion, our to associate our and personalities, of freedom freedom . . of is an right privacy important we choose. . with the people [¶] rights to fundamental guaranteed American and essential the heritage Third, Fourth, to the First, and Ninth Amendments U.S. Fifth by when there is a com abridged only Constitution. This should be right (Italics added.) . . need. .’” public pelling to intent in 1972 ensure a
That evidenced the voters’ argument ballot in also in one’s home.2 The family of one’s but right privacy only to with is live question comprehends right now whether right or, least, live in an family wishes3 at to alternate whomever one adoption. by marriage, not related Rights: shall be sub 12 of the Universal Declaration of Human “No one 2Cf. article ject nor arbitrary privacy, family, correspondence, with his home or to to interference Everyone right protection to of the upon reputation. attacks his honour and has the 16(3) “The against law Article reads: is the natu such interference attacks.” society society and group protection ral fundamental unit of and entitled to and 17(1): right as well as in “Everyone property has the own alone the State.” Article to with others.” association freedoms, 29(2): rights everyone of and shall See too article “In the exercise his of only solely purpose law for the se- subject such limitations as are determined meeting curing recognition respect rights and freedoms of others due for general in a democratic morality, public order and the welfare just requirements the society.” v. Boraas dissenting Belle Terre opinion Village in Justice Marshall’s 3Cf. 797, 808, com 1, of household “The choice 94 S.Ct. L.Ed.2d 1536]: U.S. living bymet needs’ are best emotional person’s ‘intellectual and panions—of whether a associates, consid friends, deeply personal or others—involves family, professional with erations home. That within the relationships quality of intimate as the kind by the protected right privacy within the ambit surely falls decision Constitution.” federal does declare Terre still majority opinion Belle Douglas’s if Justice Even the voters than what be narrower law, general appears right privacy federal (See Cal. Constitution. to the California “privacy” added when in 1972 approved 774-775.) Davis, 24; I, pp. Cal.3d at Const., supra, 13 White v. art. § Tribe, American Constitutional law see uncertainty to current federal Concerning 989; Carlin, 15-21, East Cleveland: 15-18, Moore v. p. p. § Law § 651; (1978) 10 Family Sw.U.L.Rev. the Extended Personal Choice Freedom (1979) 79 Appraisal Conceptualization A Equal Protection: Perry, Modern 1073; 1576-1578. (1978) 91 Harv.L.Rev. Comment Colum.L.Rev.
131 Ends and Means
As was indicated in the from the 1972 ballot foregoing excerpt Davis, in v. and stressed the unanimous court White pamphlet supra, “the all amendment does not to incursion into individ purport prohibit privacy ual but rather that such intervention must be any justified by (13 775.) Cal.3d at Has Santa Barbara compelling [public] p. interest.” that, fact, demonstrated in such does its an interest underlie decision restrict communal living? ordinance, 28.01.001,
The over-all intent of the to section according health, comfort, is “to serve convenience public safety, the and general welfare and and provide economic social advantages resulting resources, from an use of land and to planned orderly encourage, guide and provide a definite for future and of plan growth development said City.” hardly themselves those words the restrictions that By justify ap- pellants contest here.
A intent, more specific of underlying setting-up and two-family zones, as well as multiple-family “garden apartment,” “planned resi- dence,” “planned and unit” developments, establish, is “to maintain and protect the essential district, characteristics of the and develop sus- tain a life, suitable environment for and to prohibit activities of a commercial nature and those which would tend to be inharmonious with or injurious to the preservation of (See a residential environment.” 28.18.001, 28.21.001, 28.21.005(1), 28.30.032, 28.33.030, §§ 28.36.030.) Laurel, Doughty, See also Williams & in Legal Studies Realism: Mount Belle Terre 73, (1975) Rutgers Jersey Supreme Berman 29 L.Rev. 74: “The New is Court be- mid-1970’s;
ginning realistically major deal problems the United States Court, Supreme surprisingly, merely rather is repeating still what were the fashionable liberal shibboleths the mid-1930’s.” question (Cf. For impression. majority us the of first opin- one Justice Tobriner’s etc., 582, (1976) ion in Associated 604, v. Home Builders Inc. Livermore 18 Cal.3d 41, Cal.Rptr. 1038], fn. 22 557 P.2d 92 A.L.R.3d which observes that [135 majority dissenting “both the port opinion [Village sup- Terre Belle Boraas v.] I, rights our privacy conclusion” but does not examine 1 or article section of the (See (N.D.Cal. 1970) Morgan California Constitution. Palo too Alto Tenants Union v. 908, 911.) F.Supp. Concerning possible phrase “single family dwelling” breadth see Justice opinion Brady Superior Tobriner’s Cal.App.2d Court 77-82 [19 Stevens, Cal.Rptr. (Cf. opn. cone. J. in Moore v. East Cleveland 242]. 494, 513, 531, 546, Smith, 547-550, 1932]; U.S. 516-519 L.Ed.2d S.Ct. see “Burning Pig": Single Family the House to Roast the Unrelated Individuals and Zon- 161.) ing’s Blood Relation Criterion 58 CornelL.Rev. *9 zones, section 28.15.005 specifies For additionally one-family are members of most life “where children families.” kind of family of low (“These residential districts in which density zones are restricted dwellings; together land is for re- single-family use of principal creational, required and educational facilities to serve the religious for these districts are and in- designated community. regulations establish, and the essential characteristics of protect to maintain tended district, sustain a suitable environment for life develop family to families, of most all activi- prohibit where children are members which would tend nature and those to be ties of a commercial with or to the of a residential preservation inharmonious injurious environment.”) effect truly substantially help
Does the ordinance’s rule-of-five the final two words in section 28.15.005 first at Looking those goals? dependent environment” in fact on a is a “residential (just quoted), the residents of a among marriage, adoption relationship or example, any biological for determined lack house? Is transiency, We are not persuaded by the residents? among relation marriage here. facts presented (in 28.15.005) the the first sentence of or- density” “low
Regarding § It does not limit unrelated residents. dinance limits the number of only residents, It appear or of servants. does of related the number be a legitimate which overcrowding, designed prevent have been their homes are not groups It some goal. proscribes zoning related, crowded; it leaves uncon- the members are because yet, simply that are crowded. trolled some groups limit, mak- to have natural that related tend groups
The city argues families are data on average-size unnecessary; limit ing legal however, on been presented, data have not presented. Comparable housekeeping-units; who live groups single of unrelated sizes average all, reg- if at indirectly, and, best, quite is achieved control density at households. size of unrelated ulating only “the essen- maintain are to restrictions of the ordinance’s Other aims “a environment suitable districts” and tial characteristics members children are only] zones single-family where life [in noise, traffic pertinent is not the rule-of-five But families.” most that conceiv- conditions or other of activity, kinds congestion, parking *10 alter the land-use-related or ably might “characteristics” “environment” of the districts.
The rule-of-five might reflect an
that an unrelated
assumption
group
noiser,
will be
traffic
generative of more
less
parking problems, a
stable than
related
of the same size. “But none
group
of these obser
vations
a
reflects
universal truth.
are mobile
Family
groups
today,
all family
not
units are
stable and
internally
well-disciplined. Family
with two or more cars are not
groups
unfamiliar.”
Des
(City
Plaines
(1966)
116,
v. Trottner
living. who be “a reasonable number constitute would dwellings unit.” v. State 71 N.J. (Berger single housekeeping bona fide Baker, see also State 405 A.2d 1003]; supra, A.2d “The fatal flaw to maintain a stable resi attempting 371-372: *11 upon the use of criteria based neighborhood through biological dential a prohibit is that such classifications relationships operate or legal the end no threat to the pose accomplishment of uses which plethora Moreover, such a classification system legiti to be achieved. sought . .As a bears long which defeat that . as many goal. group mizes uses unit as a house relatively permanent character of a ‘generic hold,’ single family dwelling as entitled to a occupy it should be equally Ferraiolo related White Plains as its biologically neighbors. [v. (357 756)].” 313 N.E.2d N.Y.S.2d 34 N.Y.2d Association, (1977) 94 Misc.2d (Cf. etc. Freeport Village Incorp. 221, 223].4) N.Y.S.2d should be al- How question, many people here address the We do not ordinance, (Cf. 28.87.030(4b) in one house? lowed to live § . in the of. intensity “increase and density prohibits which concerns [a] use,” the number of persons including nonconforming “[i]ncrease We surrounding community.”) on the a detrimental effect . . .which has between the ordinance distinction effected by invalid the hold merely or marriage, related or two or more an individual other persons. more than five groups adoption, Permit? Use Conditional their life appellants might preserve Santa Barbara contends in a seeking permit zone and of the one-family out style moving where building (“[a] house boarding zone for a multiple-family two- (6) or more for six compensation provided are lodging meals and/or 28.04.100). for definite periods”—§ persons by pre-arrangement char- the uses that “possess as one of is described use Boarding-house their make impractical . form.. special unique acteristics of [which] course, are, many re subject of Ms. Adamson like those with aims 4Owners Law, Health See, Housing e.g., in the Fair generally. to lessors applicable strictions in does not (d): ‘discrimination’ “The term subdivision Safety section Code house single-family owner-occupied portion of an or lease a to rent clude refusal household, no provided that more living within boarder person a roomer or a added.) (Italics the household.” to live within boarder is than one roomer set forth in the various included in classes of use as being automatically 28.94.001.) issue if the (§ permit may only zones herein defined.” The “is essential or desirable to the conve public house deemed boarding with the various elements or nience or welfare and is harmony Plan; General and... it is determined objectives Comprehensive will not to the materially public peace, such detrimental [use] health, and will not af safety, general materially comfort welfare also, fect values in the “the particular Planning property neighborhood”; other conditions and restrictions may impose upon pro Commission use consistent with the General Plan and posed Comprehensive (Id.) require ...” bonding. that, rules, contention city’s pursuant to those and other appel-
lants should seek a permit lacks merit. Troubling questions arise with (1) respect to the for justification be requiring permit procedures “exhausted” when the constitutional attack on the ordinance is meritori- (cf. (1974) ous State Court 12 Cal.3d Superior of California 250-251 (2) Cal.Rptr. 1281]), P.2d the reasonableness of [115 requiring appellants zone, (3) not reside in a the one-family great breadth of city (4) officials’ discretion to deny permit, the the ra- tionality of presuming that Ms. Adamson in does operate fact a (See “boarding house.”5 too v. Perez People Cal.App.2d (re Supp. Cal.Rptr. permit “To be valid it procedure: 781] should be limited to those uses it which is difficult to only specify advance”).) conditions in adequate Those questions have not been ad- dressed in the briefs persuasively submitted the city attorney amici who his contentions support here.
Variance? of the ordinance contains these Chapter 28.92 sections: “28.92.010 Variances. difficulties,
“When or results practical unnecessary incon- hardships sistent with general the of this occur a purposes chapter by reason of 28.04.170, boarding 5Cf. “dwelling.” section which states that a house boarding-house Even more meritless the proposal proposal than are the that Ms. permit 28.94.030(1), Adamson seek a that suggestion room-rental under section relationship and her membership her associates’ is akin to in a social club or fra- (“the ternity. purpose Cf. section 28.04.150 is to render a service [a club]... customarily guests”); 28.94.030(12) (“[n]ormal rendered for members and their section facilities’’); (“clubs clubhouse providing primarily section 28.94.034 indoor recreation 28.94.031(21) (“Frater- prohibited”); facilities rather than outdoor facilities are nity section sorority Zones”). houses in the R-2 this either chapter, provisions of the interpretation any strict motion, own or the its may upon Council City Commission or Planning of any application property verified Commission Planning upon cases, shall, initiate proceedings in specific owner or authorized agent this under chapter the provisions from for the of variance granting the spirit to assure that necessary be deemed such conditions as may observed, and welfare public safety will be of this chapter and purposes Commis- secured, Planning All acts done. justice and substantial of this shall be section under provisions sion and Council purpose assuring for the performed acts construed as administrative cases, in special this shall chapter apply that the intent and purpose as section, be construed amendments and shall not this provided circum- economic or Individual chapter map. of this provisions for the of a variance.” granting are not a consideration proper stances “28.92.013 Conditions. Necessary
“Before a variance all of the shall be granted following shown: circumstances extraordinary exceptional are
“1. That there *13 involved, the use of or to intended the property to applicable conditions or class of use the property do generally that not property, apply the vicinity. in same zone or the detri- materially will not be the of such variance
“2. That granting to the or property or injurious the welfare public mental is located. the property in which in such zone vicinity improvements enjoy- and preservation is for the such variance necessary “3. That other the applicant possessed by right substantial of property ment of a the and vicinity. in same zone property affect the adversely will the of such variance
“4. That granting General Plan.” Comprehensive (in dated Jan. his letter-brief as follows
The city attorney argues that a of group can demonstrate 1980): an Applicant “Assuming of adverse to the purposes will not be than five unrelated more in estab- Applicant the by to measures taken Ordinance due the Zoning the use have the would proposed regulating group, and lishing than to allow more sufficient circumstances or conditions extraordinary persons.” five unrelated (as find the officials variance city
Further to the requirement of a substantial enjoyment property necessary preservation in other the same zone and possessed property right applicant by be a that owners of other can made vicinity), finding showing “[t]his in the zone and can use the home vicinity homes lots same number of related persons.” an unlimited [sic!] depend upon pre- second and fourth will
Finally, findings “[t]he selected, the review developed part cise site the information conditions on the be devised to re- process whether could approval move with the For an any inconsistency findings. example, investigation utilities, reveal that the area has ca- may adequate public parks, street or that a condition the injurious impact may be pacity, mitigating If water is it be imposed. availability problem, may possible require water If conservation. street is a a limit on capacity problem, average trips be daily possible.”
Those are arguments remote from the erratically significant facts of Also, this case. again, questions arise as to the appropriateness of requiring “exhausted,” here that administrative procedures (Cf. breadth city officials’ discretion. Renfrew’s comment Judge (N.D.Cal. Dahl v. Palo Alto 1974) “It F.Supp. 649: would, could, that a highly improbable variance be grant legally ”; and see Cow Hollow ed... Improvement Club Board Permit Appeals (to Cal.App.2d allow Cal.Rptr. 610] an R-2 use in an R-l zone is “tantamount an amendment of the zon ing regulations variance”); guise 28.87.030(2) granting § (“amendment the ordinance after a recommendation. . .from the Plan *14 Commission”); (Cont.Ed.Bar ning Cal. Practice Zoning 1978) Supp. 7.54, 152 p. (“[c]ities expect review of rigorous § variances even if is enacted Moore zoning under their charter East Cleve powers”); land 494, 431 531, 545-546, U.S. 512-513 L.Ed.2d 97 S.Ct. (cone. Brennan, opn. J.): existence the pro variance 1932] “[T]he cedure serves to lessen neither the of the definition of irrationality ‘family’ nor the extent of its intrusion into family deci life-style sions .... We have passed now well the beyond when day illusory escape hatches could the justify imposition burdens on fundamental rights.”)
Conclusion order the preliminary granting injunction is reversed. The case is
remanded for further proceedings consistent with this opinion. J., Mosk, J.,
Bird, J., Tobriner, concurred. C.
MANUEL, I dissent. J. pre of Santa Barbara—and
The majority opinion, casting City similar zoning cities which have the at least other sumably to the “alternate family,” ordinances 1—inthe sinister role antagonist provisions intention of the meaning, purpose, distorts radically ordinances, it must be empha we The Santa Barbara here consider. sized, living the establishment of communal preclude impede do On the contrary in the zones of single-family city. arrangements a numerical simply such expressly arrangements, imposing permit Thus, “family” zoning limitation the ordinances provide, thereon. (i.e., re of persons is either a traditional one purposes composed or what the terms adoption), majority lated marriage, legal ordinance, which, an langauge “alternate” family—one ser persons, exceed five excluding not to comprises group “[a] vants, unit in a unit.” dwelling living together single housekeeping 28.04.230.) (§ Angeles following curiae Los advises in its brief Califor 1 Amicus us “family” zoning nia which is adopted cities have a definition of in their ordinances adopted identical to that Santa Barbara: 1. Municipal Auburn: Code section 9-4.137 2. Municipal Azusa: Code section 19.04.300 9426(f) Municipal 3. Park: Baldwin Court section (F)2 Municipal
4. Bell: Code section 9211 Burlingame: Municipal 5. Code section 25.08.260 Municipal 6. Camarillo: 7. Code section 19.04.310 Municipal Code section 21.04.145 Carlsbad: Municipal 8. Chula Vista: Code section 19.04.092 Zoning 9. Ordinance No. section 4.25 Colusa: Municipal 10. Code section 18.09.105 Corte Madera: Crescent City: Zoning 11. 12. 13. Ordinance section 30-700.36 24-1, article Municipal Code section Davis: Del Mar: Code, Municipal Chapter section 30-32 Rey Municipal 14. Del Code section 11-217.1 Oaks: 9104.96 Downey: Municipal 15. Code section Cajon: Municipal 16. El Code section 17.04.390 Municipal section 1.17 17. Hidden Hills: Code *15 Long Municipal 18. Beach: Code section 9120.2 1, 2, Code, section 12.03 Angeles: Municipal chapter article 19. Los Code, Municipal section 10-3.234 20. Manhattan Beach: 10.2.502(d) 1 Municipal 21. Code section Modesto: 9202.6(F) 1 Municipal Code section 22. Montebello: 2.08, appendix A Monterey: City 23. section Code Monterey Municipal 24. Code section 21.04.275 Park: 18-2.17 Municipal Code section 25. Verdes Palos Estates:
139 The sort dark majority, provisions these some animus perceiving 2 that at against arrangements, nontraditional concludes here living or, least, stake is wishes at to live right “the to live with whomever one in an alternate persons marriage, with related by ante, 130; omitted.) fn. As I read the adoption.” (Majority p. at opn., ordinances, us, right question is before expressly granted. then, ordinances, is limit whether those insofar the number of unit, unrelated who live in a violate persons dwelling single any rights. constitutional cognizable
It is clear that no rights guaranteed federal Constitution are by offended. In the recent case of Belle comparatively Village Terre v. Boraas, 416 U.S. United States Court addressed supra Supreme which, to the of an challenge constitutional ordinance like validity us, that here permitted before unrelated to live together “as a single unit” in a zone but housekeeping placed a numeri single-family cal limit on such “alternate” The ordinance was arrangements. on a number challenged of constitutional due grounds, including proc ess, travel, right of free association and rights privacy. held, however, The court that the case involved “no ‘fundamental’ right guaranteed (Id., at Constitution. ...” 7-8 at pp. L.Ed.2d [39 Therefore, concluded, p. 803].) the court the test to be in deter applied mining whether the legislative body had exceeded the of its scope power constitutional was that to “economic and normally applied social kind—i.e., legislation” this it whether bore a rational relationship to 26. Municipal Richmond: Code section 15.04.040 27. Municipal Riverside: Code section 19.04.138 Diego: 28. San Municipal (B1-B5); Code section 101.0407 section 101.0101.20 Code, 29. Municipal San Francisco: part chapter section 102.8 30. Santa Barbara: Municipal 28.04.230(2) Code section 24.10.354; 31. Municipal Santa Cruz: Code section section 24.16.300-341 Valley: 32. Zoning Simi Ordinance No. 8170-25 33. Thousand Municipal Oaks: Code section 9-4.230 34. Municipal 91.2.24(b) Torrance: Code section Vallejo: 35. Municipal Code section 16.04.170 Code, A, 36. appendix Vista: Zoning Ordinance section 238 l.(f)2 37. Municipal Whittier: Code section 911 suggested, 2Indeed it even question, albeit rhetorical one underlying motive Santa zoning might Barbara’s ordinances have groups been fear “that of unrelated persons [might] an hazard immoral environment for (Majority families children.” ante, opn., 133.) p. difficulty at have understanding the relevance of such an observa tion in a subject case where the explicitly permit “groups ordinances of unrelated persons” together to live single-family in a (See Village zone. also Belle Terre v. 797, 803-804, Boraas 416 U.S. 1536].) L.Ed.2d S.Ct.
140 (Id., This, at 8 at p. a state L.Ed.2d permissible p. 803].) objective. [39 court, in the view of the it did. the the Dismissing contention that high (two case) limit in that on “alternative” family numerical was groups it “The is say: police power went on not confined to elimi arbitrary,3 filth, stench, nation It is unhealthy places. lay of out zones ample values, values, where and the quiet of seclusion family youth blessings (Id., and clean air make the area a at 9 sanctuary people.” p. [39 L.Ed.2d at p. 804].)
The
theme in the
East
court
on this
case Moore v.
high
expanded
531,
(1977)
Justice in the but plurality adding joining “Indeed, concurrence, Belle Terre Village stated the distinction thus: Boraas, (1974), upon relied v. case primarily U.S. [the The Belle Terre ordinance the Court’s decision. city], actually supports single- from a in a family barred individuals constituting unrelated only emphasize in its brief to took care village special zone. indi- of related inhibit the choice its did not in manner any ordinance said, however, ‘family,’ a there is people if unmarried can constitute 3“It two legislature leaves drawn out why every not. But line no reason three or four however, discretion, leg is a That might well have been included. exercise some that islative, Boraas, supra, 416 U.S. judicial, (Village Belle Terre function.” omitted.) 803-804], fn. L.Ed.2d *17 ‘nuclear’ or ‘extended’ whether in the viduals to constitute a family, choice as one it was This that village perceived form. was because the {Id., L.Ed.2d at to inhibit.” at p. constitutionally powerless statement, added.) of this final 544-545], implication pp. emphasis Terre, in clear. light in of the Belle express holding The distinction drawn the Belle Terre and Moore cases has never which, been better it was in expressed than a case although antedating them some four their rationale. In Palo years, clearly anticipated (N.D.Cal. 1970) Tenants Union Morgan Alto affd. F.Supp. (9th 1973) Cir. 487 F.2d the court a a challenge confronted to city all zoning ordinance similar in relevant to that here before respects us. It was that an urged because ordinance restrictions on the use placing R-l of an zone deemed by “traditional” families be sus might “highly the ordinance at pect,” there numerical limitations on bench—placing “alternate” in such family a zone—should be viewed with arrangements the same suspicion. The court is a disagreed: long recognized “[T]here value the traditional does not attach family relationship which to the ‘voluntary family’. The traditional is an institution reinforced by biological difficult, ties which are legal impossible, to sunder. It which, role in plays far from educating nourishing young be ing ‘voluntary’, means, is often been compulsory. it has Finally, millenia, uncounted emotional and satisfying deepest physical needs human A law zoning which divided or beings. totally excluded traditional families would indeed be The communal ‘suspect’. living [¶] groups represented share few above by plaintiffs of the characteristics. They are voluntary who have no fluctuating memberships ob legal no ligations support cohabitation. are in to the They way subject vast State’s do body domestic relations law. not have the bio They links which logical characterize most Emotional ties between families. exist, commune members but this is true members of many Plaintiffs are groups. seeking sincere in to devise and unquestionably new test but the communes have formed are in life-styles, legally distinguishable from such traditional living groups religious clubs. The such communities residence to form right groups may but the to insist these live constitutionally protected, right groups choose, roof, the same any part under of the is not. To de city they . .would broadly. fine ‘association’ so be to dilute effectiveness of branch which our tradition has special developed of jurisprudence (321 interests citizenry.” F.Supp. vital at protect truly 911-912, omitted.) fn. pp. *18 above, un- delineated quite
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222],
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P.2d
Cal.Rptr.
they
The case was one leading supra, involving police of White activities, which activities department’s covert intelligence gathering the then state newly adopted pri- were as an of challenged infringement There, “the contours the new full of vacy guarantee. noting not even been sketched” yet tentatively constitutional have provision (13 773), went such a sketch indicat- provide at we on to p. Cal.3d intent, the voters’ indicating reference to election materials ing, through detailed draftsman- of within which more broad area concern concept was to the general of occur. ship precedent “Although judicial relates, course, field of and diverse enormously to an broad privacy new belief,” noted, we “the behind the moving personal action force relating concern was a more provision privacy constitutional focussed security on accelerating personal to the encroachment freedom in contem- data collection activity caused increased surveillance and is to new provision’s primary purpose porary society. afford this most modern against individuals some measure protection {Id., 773-774; added, at fn. pp. italics omit- personal privacy.” threat ted.) We ‘mischiefs’ at which the principal also noted “the amendment “(1) and the secret directed.” are: They ‘government snooping’ gath- information; (2) the overbroad collection retention ering personal personal information business inter- unnecessary by government ests; (3) use of information obtained for a improper properly use it for example, another or the specific purpose, purpose *19 (4) disclosure of it to third the lack of party; some a reasonable {Id., 775.) check on the p. of records.” at accuracy existing In recent case 23 the of v. Privitera Cal.3d 697 People [153 431, 591 it was P.2d contended that the state constitu Cal.Rptr. 919] guarantee tional of “a to privacy encompasses to access of right drugs (Id., 709.) not, at unproven efficacy.” We held that it did p. pointing out that no was such within the zone of right comprehended privacy concern in which the amendment was have “In designed to effect. the absence of evidence that the voters in any amending the California Constitution to create a of intended to right protect conduct of privacy defendants, the sort in we no engaged by have hesitation in holding (Id., section 1707.1 does not offend that provision.” constitutional at (See 709-710.) pp. also People v. Davis 260 Cal.App.3d Cal.Rptr. 817].) [154 I find
Similarly, voters, no evidence of kind that the when any added the I, in privacy provision found article section intended to es- or, tablish a least, live with “right whomever one wishes at to live in an alternate with not family related marriage, ante, adoption” 130)—such at (majority opn., p. right preserved be from all except in those infringement cases where city can shoulder the unenviable burden of some state demonstrating inter- “compelling est” which justifies so. doing I conclude that the Accordingly, majority, in conferring “fundamental” constitutional status to it de- right so scribes, courts, are in error. If the interpreting provision privacy Constitution, of our state are to take themselves the of upon function when the determining wishes and desires of a particular of group people are be accorded “fundamental” status—and thus invoke strict judici- al of scrutiny legislation such affecting rights—the constitutional of balance our will government be dislocated. I do not believe radically that such a dislocation was intended the voters this state when out of a they, manifest concern for the excesses of surveil- governmental lance, I, article adopted section 1. (McCulloch Mary- Marshall
The familiar dictum of Chief Justice (4 Wheat.) 316, bears land 601]) L.Ed. U.S. deal not with legisla- this We here emphasis renewed cases of kind. It well that an tive but principle. wisdom with constitutional de- to the flow of social currents and enlightened alert municipality, communal velopment living arrangements wholesome valuable structure, wish to family outside the framework of the traditional might tailor its in such a manner as accommodate zoning requirements with groups. such on an essential those arrangements parity family Barbara, extent, so, has done permit- of Santa to a significant in its groups such to coexist ting arrangements zone, limit the size such “al- but a numerical on single-family placing limit on the ternate” with a view to some size groups—clearly imposing to the normal subject within zone which are living groups limits It well be family. might and social natural biological all the wisdom of Solomon would remove such limits. legislator having *20 That, however, before us is is not before us. The question question view, is unconstitutional. them In my whether remove failure clear, I make answer as the cases which have discussed above is decidedly no. question I would affirm the order.
Clark, J., Richardson, J., concurred. was June 1980. denied rehearing for a Respondent’s petition J., that the Richardson, J., Manuel, were J., opinion Clark granted. should be petition