Lead Opinion
This is an appeal from a judgment for defendant in an action seeking declaratory relief and to enjoin defendant from enforcing a zoning restriction alleged to be unconstitutional insofar as it applies to prevent rock and gravel operations on plaintiffs’ property.
Except for the Livingston Rock and Gravel Plant on 125 acres contiguous to the westerly portion of plaintiffs’ property—an operation conducted since 1931, now substantially depleted in the course of some 30 years’ activity, and with but a doubtful number of remaining years left for economic extraction—rock and gravel operations in the Tujunga Wash have been confined to the area downstream from Hansen Dam. Since 1946 defendant City of Los Angeles has not created any new rock and gravel districts upstream from Hansen Dam but has specifically denied applications for such designated districts upon premises immediately adjacent to plaintiffs’ property.
The twin residential communities of Sunland and Tujunga adjoin plaintiffs’ property, with their mainly developed portions lying east and southeast thereof. In recent years the trend of development in these communities has been in a westerly direction toward plaintiffs’ property and along and upon the bluffs north and south thereof.
Plaintiffs’ property—348 acres—is zoned for agricultural and residential use; and rock, sand and gravel operations are prohibited thereon. During the trial, the trial judge pursuant
The trial court found that the subject property has great value if used for rock, sand and gravel excavation but “no appreciable economic value” for any other purpose, and in view of the “continuing flood hazard and the nature of the soil,” any suggestion that the property has economic value for any other use, including those uses for which it was zoned, “is preposterous.” With respect to the effect that rock and gravel excavating operations would have on nearby residential communities, the trial court found that the “creation of dust for air-borne convection” could be “reduced to a point of pollution below an acceptable standard,” that the “inevitable” noise could be controlled to the point where it would be “minimal,” that there would be no extraordinary danger to children; and in summation, that the “business of excavating . . . rock, sand and gravel and activities incidental and related thereto can be conducted on the plaintiffs’ said property with compatibility to adjacent properties and with minimal detriment to the living amenities or health conditions of the inhabitants of adjacent properties or in the general area and without probable depreciation in property values to the adjacent properties.”
While expressing these views on vital matters affecting the “public health” of the adjacent communities, the trial court further found that they “are all factors which, in their totality, the legislative body [the Los Angeles City Council] may properly consider and act upon” and that “reasonable minds might differ and have differed upon these” factors.
The trial court also found that “the Sunland-Tujunga area . . . has a national reputation as a haven for sufferers from respiratory ailments and is inhabited by many such sufferers and that a considerable portion of its economy is based upon such reputation”; that “the possible advent of a substantial rock, sand and gravel extraction and processing operation upon the subject property has caused considerable apprehension to the residents and the communities of Sunland and Tujunga of air pollution, traffic and other dangers and annoyances as a result thereof”; and that “a rock and gravel operation upon the subject property could adversely affect
There was substantial evidence that even though operated with all possible safeguards, the extraction of sand and gravel from the subject property would still create appreciable quantities of dust, which would be carried by the prevailing winds to the residences and sanitariums of Sunland and Tujunga; that this dust would have a damaging effect upon the sufferers from respiratory ailments; and also that such operations would adversely affect property values in those communities. The trial court concluded that plaintiffs’ property was “not arbitrarily, capriciously or unreasonably zoned” under the ordinances prohibiting rock and gravel operations thereon; and that such zoning was “not discriminatory” nor did it offend constitutional guarantees protecting plaintiffs’ property rights. (U.S. Const., 5th and 14th Amends.; Cal. Const., art. I, §§ 1, 13 and 14.) Accordingly, judgment was entered for defendant.
Plaintiffs argue that the zoning restriction in its application to their property is unconstitutional and void as being: (a) a denial of due process; (b) a denial of equal protection of the laws; (c) a taking of private property for public use without compensation; and (d) discriminatory in operation. They claim that the record clearly shows that their property is so-called “one use property,” having economic value only for the excavation of rock, sand and gravel; and that under the guise of enforcing police regulations, defendant is guilty of “an unwarranted and arbitrary interference with” their constitutional right “to carry on a lawful business” so as to render their property valueless.
The trial judge in his findings and conclusions of law which he drew therefrom showed a clear recognition of the respective functions of the legislative body in enacting a comprehensive zoning ordinance and of the courts in passing upon the constitutionality of such legislation. The origin and rapid growth and acceptance of the principle of comprehensive zoning as a constitutionally valid method of the regulation of the uses to which an owner might put his real property was a phenomenon of the late teens and early twenties of the present century. The first comprehensive zoning ordinance in the "United States was enacted in 1916 in the City of New York (Miller v. Board of Public Works,
Those early zoning cases laid down the broad pattern of the rules by which the constitutionality of such legislation is to be tested in the courts. Thus in Euclid v. Ambler Realty Co., supra,
This principle of the elasticity of the application to be given to settled constitutional principles finds its echo in the language of this court in Miller v. Board of Public Works, supra,
As a corollary to this recognized principle of the capacity of the police power to meet the reasonable current requirements of time and place and period in history is the equally well settled rule that the determination of the necessity and form of such regulations, as is true with all exercises of the police power, is primarily a legislative and not a judicial function, and is to be tested in the courts not by what the judges individually or collectively may think of the wisdom or necessity of a particular regulation, but solely by the answer to the question is there any reasonable basis in fact to support the legislative determination of the regulation’s wisdom and necessity? Thus in Miller, supra, this court said in
So in Ambler, supra, the United States Supreme Court said (
It was in clear recognition of this principle of the division of functions between the legislative and judicial branches that the trial judge in effect concluded that although his own determination, if the questions presented had been his to decide, would have been to the contrary, since under the evidence presented to the legislative body and to the court reasonable minds could differ, he must bow to the legislative conclusion. Plaintiffs do not question the correctness of this rule as a general guide to be followed in determining the constitutionality of zoning ordinances, but they make the narrower contention that where property is primarily or preponderantly valuable for the extraction therefrom of a natural resource, here the valuable sand and gravel deposits in their land, the legislative authorities may not constitutionally prohibit it altogether, although they admit that they may otherwise regulate the extraction and recovery of such natural resources. In support of this position plaintiffs primarily rely upon five California cases and one case from the Supreme Court of the United States: In re Kelso (1905),
We must admit that there is language in these cases, which pressed to its ultimate conclusion, and divorced from the facts of each particular case in which it was used, lends color to plaintiffs’ position. Typical is the statement in the earliest of them, Kelso,
Of this case and Throop, supra,
People v. Hawley, supra,
Wheeler v. Gregg, supra,
Morton v. Superior Court, supra,
The Kelso, Throop and Hawley eases were distinguished in In re Angelus (1944)
“Re Kelso,147 Cal. 609 [82 P. 241 ,109 Am.St.Rep. 178 , 2 L.R.A. N.S. 796]. . . . That was decided more than thirty years ago. A San Francisco ordinance prohibited the operation of a quarry in a given district. The court said that there were many ways of operating a quarry, some of which could harm no one. It recognized the fact that one operated by blasts might be prohibited and that its operations might be hedged about by valid regulations which would make it unprofitable. If that case intended to hold that the city cannot forbid the operation of quarries, operated as quarries are ordinarily operated, where people live or are acctistomed to move, then it is out of touch with latter day extensions of police power.” (Emphasis added.)
The Pennsylvania Coal Co. case, supra,
Too many cases have been decided upholding the constitutionality of comprehensive zoning ordinances prohibiting the removal of natural products from lands in certain zones for us now to accept at full value the suggestion that there is such an inherent difference in natural products of the property that in a case where reasonable minds may differ as to the necessity of such prohibition the same power to prohibit the extraction of natural products does not inhere in the legislative body as it has to prohibit uses of other sorts. (Friel v. County of Los Angeles,
Plaintiffs rely heavily upon the finding of the trial court “that the subject property has no appreciable economic value for any of the uses permitted in the Al, A2 and RA zones, or for any other use except for the purpose of excavating, crushing and processing rock, sand and gravel and activities related or incidental thereto, and if such use is prohibited, it will destroy the economic value thereof.” There was testimony before the legislative body that the property could be successfully devoted to certain other uses, i.e., for stabling horses, cattle feeding and grazing, chicken raising, dog kennels, fish hatcheries, golf courses, certain types of horticulture, and recreation. It must be conceded that in relation to its value for the extraction of rock, sand and gravel the value of the property for any of the described uses is relatively small if not minimal, and that as to a considerable part of it seasonal flooding might prevent its continuous use for any purpose. “ However, the very essence of the police power as differentiated from the power of eminent domain is that the deprivation of individual rights and property cannot prevent its operation, once it is shown that its exercise is proper and that the method of its exercise is reasonably within the meaning of due process of law. . . . And it is recognized that oil production is a business which must operate, if at all, where the resources are found. Nevertheless city zoning ordinances prohibiting the production of oil in designated areas have been held valid.” (Beverly Oil Co. v. City of Los Angeles, supra,
In Beverly at page 557 this court quoted from Hadacheck v. Sebastian,
In Town of Seekonk v. John J. McHale & Sons, supra,
The Supreme Court of Michigan in Township of Bloomfield v. Beardslee, supra,
“Attractive though the argument may seem upon its first reading, it must be obvious that a logical application of its principle would be destructive of all zoning. For in each case the particular parcel has, it is always asserted, some peculiar utility: it is an ideal spot for a motel, or a factory, or a junk yard, or what not. It has that contiguity to traffic, that peculiar topographical structure, that supply of water or shade, which makes it unique. Yet, just as the surface user desired by the owner must give way, at times, to the public good, so must the sub-surface exploitation.”
Finally on this point we quote from the West Bros. Brick Co. case, supra,
It is our conclusion that, having found on substantial evidence that the necessity and propriety of the legislative action in this ease is one upon which reasonable minds may differ, the trial court properly found in favor of the ordinance ’s constitutionality.
Plaintiffs also contend that the challenged zoning law discriminates against their property in that Livingston Rock and Gravel Company conducts operations on some 125 acres contiguous to plaintiffs ’ property. The Livingston property adjoins plaintiffs’ property west of Foothill Boulevard. About half of plaintiffs’ property lies east of Foothill Boulevard and it has developed differently from the property west of the boulevard. The original permit for the Livingston rock and gravel operations was issued in 1931; the property having been worked some thirty years, is substantially depleted and its number of remaining years of economic operation is doubtful. The Livingston property, 125 acres, is considerably smaller than plaintiffs’ property, 348 acres; it is not in the center of Tu junga Wash but in a side pocket formed by the hills; and according to expert evidence, its dust was less subject to being stirred and carried by the winds in the Tujunga Wash. As heretofore stated, the trial judge pursuant to stipulation of counsel made an extensive tour of inspection of plaintiffs’ property and the surrounding area, which observations became evidence in the ease in support of the findings. (Wheeler v. Gregg, supra,
We are satisfied that the zoning law is consistent with the obvious legislative policy in municipal planning and development of this area in furtherance of the best interests and general welfare of the community as a whole: To confine rock and gravel operations in the Tujunga Wash to the area downstream from the Hansen Dam, and to encourage and protect the welfare and growth of the residential communities of Sunland and Tujunga by preventing the extension of rock and gravel operations upstream from the dam, meanwhile letting the already existing but substantially depleted Livingston operation gradually work itself into oblivion. (See Paramount Rock Co. v. County of San Diego,
As an alternative ground for relief, plaintiffs sought a declaration of their right to conduct rock, sand and gravel operations on their property as a conditional use because of certain provisions of successive zoning ordinances. While
From the record it appears that until about 1935 plaintiffs’ property was in a residential district but rock, sand and gravel operations were being conducted thereon as a nonconforming use. In 1935 these operations were voluntarily terminated and the site where the operations were located was taken in 1939 as part of the Hansen Dam condemnation proceedings. Concededly, there have been no active rock and gravel operations on plaintiffs’ property since 1939.
In 1934 Ordinance No. 74140 was enacted whereby plaintiffs’ property was established as within a residential district subject only to a variance in use “for the particular purpose for which the original exception was granted as shown by the records.” (§ 4(d).) There was no evidence that any ‘‘original exception” was ever specifically granted to permit rock, sand and gravel operations on plaintiffs’ property, so the exception provision of the ordinance was inoperative to exclude plaintiffs’ property from the residential restriction use. However, the same ordinance provided for continuance of nonconforming use but expressly declared that such use should be deemed discontinued and abandoned “when such use has ceased to operate or the lot or premises has ceased to be used for such non-conforming purpose for a period of sixty (60) days.” Therefore, conceding the existence of a nonconforming use status at the time of the 1934 ordinance, the complete cessation of such use on the subject property in 1935 or, even if that be the fact, in 1939 terminated any nonconforming use status; and since then to the present date plaintiffs have not attempted to conduct the desired operations
Plaintiffs further cite these additional ordinances: (1) Ordinance No. 90500, adopted in 1946, setting forth the “Comprehensive Zoning Plan of the City of Los Angeles” and providing that certain uses, including the development of natural resources other than drilling for oil, “existing at the time this Section becomes effective” shall be deemed to have been approved for conditional use (§ 12.24 B9) ; and (2) Ordinance No. 92679, enacted in 1948 and setting up rock and gravel districts, with permission thereby provided for continuance of any conditional use permit or any other right already existing for the development of rock and gravel (§ 13.03 D2). However, since the use of plaintiffs’ property for rock, sand and gravel operations had already terminated some ten years previously, the 1946 and 1948 ordinances can add no force to plaintiffs’ arguments here. The adoption of a comprehensive plan of community development looking toward the containment and eventual elimination of nonconforming uses, including rock and gravel operations, accords with recognized zoning objectives under settled legal principles. (Paramount Rock Co. v. County of San Diego, supra,
The judgment is affirmed.
Gibson, C. J., Traynor, J., Peters, J., and White, J., concurred.
Notes
The planning commission approved with certain recommended conditions plaintiffs’ application for designation of their property as a “Bock and Gravel District ’ ’; the city council ultimately denied such application.
Dissenting Opinion
I dissent. I would reverse the judgment for the reasons expressed by Mr. Presiding Justice Fox in the opinion prepared by him for the District Court of Appeal in Consolidated Rock Products Co. v. City of Los Angeles, (Cal.App.)
Schauer, J., concurred.
Appellants’ petition for a rehearing was denied May 9, 1962. Schauer, J., and McComb, J., were of the opinion that the petition should be granted.