NEIL S. MсCARTHY et al., Appellants, v. CITY OF MANHATTAN BEACH, Respondent.
L. A. No. 22507
In Bank
Dec. 30, 1953.
41 Cal.2d 879 | 264 P.2d 932
Clyde Woodworth, City Attorney, Dunlap, Holmes, Ross & Woodson for Respondent.
SPENCE, J.--Plaintiffs sought a judgment declaring that a certain zoning ordinance restricting the use of their ocean-front property to beach recreational purposes is “null and void” as applied to them. In the first cause of action they challenged the constitutionality of the zoning restriction insofar as it affects their land, claiming that it violates the due process and equal protection clauses of both the federal and state Constitutions and results in a taking of their property for public use without compensation. (
Plaintiffs are the owners of approximately three-fifths of a mile of sandy beach frontage in the city of Manhattan Beach. The property extends from 1st Street, which is the south boundary of the city adjoining Hermosa Beach, to 13th Street. It is a strip of land varying in width from 174 to 186 feet and having an average slope of 1 to 2 feet vertical
In 1924 the city brought a quiet title action with respect to the property now owned by plaintiffs, upon the claim of the subdividers’ dedication of the land for public use according to certain recorded maps. The action, tried in 1935, resulted in a judgment against the city and title was quieted in plaintiffs’ predecessors in interest. The judgment was affirmed on February 15, 1938. (Manhattan Beach v. Cortelyou, 10 Cal.2d 653 [76 P.2d 483].) Since at least 1900 the property has been continuously used for public beach purposes. (Ibid. p. 665.) In 1929 it was classified under thе city‘s ordinance (No. 337) into a single-family residence district. Following the final judgment in the quiet title action and over a period of several years, plaintiffs and the city cooperated in various unsuccessful efforts to cause the property to be acquired through sale or lease by the public authorities. Resolutions were passed by the city from time to time declaring its present lack of funds for acquisition of the property but recommending that the county or state allocate money so that continued “use of the property as a public beach” could be preserved. In discussion of the matter with plaintiff Neil S. McCarthy, both the mayor and city attorney expressed their hope that the property would not be sold or improved so as to increase the cost of its acquisition by the public authorities.
On June 24, 1940, Mr. McCarthy advised the mayor by letter that upon assuranсe from the city officials that arrangements were being made to acquire the property, he had delayed putting it on the market during the main selling season; and that in the hope then of deriving some revenue from the property, he was arranging to enclose it and charge admission for its use. An emergency ordinance passed by the city on July 1, 1940, prohibited the erection of any barbed wire fence in the city without first obtaining a written permit from the city council. McCarthy secured such a permit and
By letter of August 12, 1940, McCarthy advised the city council of his belief that the property could not be sold or subdivided for residential purposes and requested a rezoning of the property for business purposes. Pursuant to the recommendation of the city planning commission after a public hearing, the city council on August 22, 1940, denied the request. Then on June 26, 1941, the city council adopted the zoning ordinance in question (No. 502), whereby under section 10 plaintiffs’ property could be used only for beach recreational activities and for the operation of beach facilities for such activities for an admission fee; and the only structures permitted thereon were lifeguard towers, open smooth wire fences and small signs. Meanwhile the city was still interested in plaintiffs’ property for a public park and carried on negotiations with the state looking toward its acquisition. In 1948 the state commenced an action to condemn the property for park purposes but it has not yet been brought to trial.
Plaintiffs made no use of their property as permitted by the 1941 zoning ordinance nor did they receive any income therefrom. In 1950 they applied to the city for a modification of the ordinance so as to change the classification of their property from “Beach Recreational District” to “Single Family Residence District.” Plaintiffs had paid taxes on their property ranging from approximately $4,200 in 1940 to approximately $9,000 in 1950. The rezoning application was referred to the city planning commission and, after public hearings, was denied on January 10, 1951. The city council denied the application on March 6, 1951. Plaintiffs thereupon brought this action for declaratory relief.
The trial court found, in part, that plaintiffs’ property is, from time to time, subject tо erosion and replacement by reason of storms and wave action of the Pacific Ocean; that any residences which could be constructed upon the property would necessarily be erected on pilings, and reasonable minds might differ as to the safety of residence properties so constructed;
As stated in Clemons v. City of Los Angeles, 36 Cal.2d 95, 98 [222 P.2d 439], a zoning ordinance enacted pursuant to a comprehensive plan of community development, “when reasonable in object and not arbitrary in operation,” will be sustained as a proper exercise of the police power; every intendment is in favor of its validity, and a court will not, “except in a clear case of oppressive and arbitrary limitation,” interfere with the legislative discretion; it is presumed to be adapted to promotion of the public health, safety, morals and general welfare; and though the court may differ
Ordinance 502 comprehends a city-wide zoning plan. It provides for 10 zoning districts in the city. Only four districts are material here: R-2 for two-family residences; R-3, for limited multiple-family residences; B-1, a beach recreational district; аnd C-1, for retail commercial purposes. The property west of the strand is in zone B-1. That property consists of plaintiffs’ land, the beach frontage adjoining on the north thereof, and the Pacific Electric‘s former right of way. Prior to the passage of this ordinance, the beach frontage north of plaintiffs’ land was acquired by the state for state park purposes, and some years thereafter (1948) the mentioned right of way was similarly acquired for park purposes. Accordingly, when plaintiffs commenced this action, theirs was the only privately owned property in zone B-1.
Section 1 of ordinance 502 declares: “In order to provide the economic and social advantages resulting from an orderly planned use of land resources and to conserve and promote the public health, safety and general welfare, there is hereby adopted and estаblished an Official Land Use Plan for the City of Manhattan Beach. . . .” A planning consultant who had assisted in drafting the zoning ordinance testified that the intent of the district classifications was to “produce a plan meeting all of the various zoning needs of the city . . . a balanced plan . . . including, among other things, one section . . . eminently suited . . . for beach recreation.” He further stated that in his opinion the cost of home-building would be relatively high on the beach frontage and therefore inclusion of that beach area in zone R-1 might be deemed “unreasonable zoning“; that home-building in that area might also destroy certain values which residential sections developed just back of the strand had long enjoyed; and that he therefore had recommended to the city planning commission the creation of the “beach recreation zone which would give the owners of the property the right to derive an income from it.” Another expert witness on zoning problems testified that the ordinance properly provided for a beach recreational area to “take advantage” of the city‘s “natural resource or asset,” its “ocean frontage,” which accounted for its original development as a community.
In support of their claim that their property was suitable for residential development, plaintiffs called as a witness Colonel Leeds, a qualified civil and consulting engineer. He testified that any residence construction on plaintiffs’ property would have to be on pilings; that he would place the structure on concrete or steel piles, the top of which would be at an elevation of approximately 20 feet above the mean low water; that he had prepared a diagram, admitted in evidence as plaintiffs’ Exhibit 62, showing residential development of plaintiffs’ property, allowing 35 feet west of the Pacific Electric‘s former right of way (the state park strip) for a public roadway and the next 75 feet oceanward for the construction of houses on piling; that in his opinion houses so erected would be safe from damage from the ocean. On cross-examination, he testified that he did not know that on occasion the Pacific Electric‘s former right of way at Manhattan Beach had been under water; that he did not know that heavy sea and storm water had come up over the strand in 1938 and caused severe damage; that he had not made any investigation as to whether the city would approve a 35-foot roadway; that he had seen no subdivision plan for this beach area; that in forming his opinion as to the safety of constructing houses on plaintiffs’ property, he had considered the presence of houses at Hermosa Beach, adjoining plaintiffs’ property on the south, and that the front of the houses built on plaintiffs’ property would be westerly of the front of the houses on Hermosa Beach; that the height to which water is projected shoreward depends upon wave and wind action-ground swells are a form of wave; that damage to piers and structures on beaches is usually caused by ground swells, which are produced by distant storms or submarine earth-
It was stipulated that the judge might view the property and that he might consider as evidence everything that he saw in making such inspection. The visit was made in the company of an attorney for plaintiffs, an attorney for the city, and the clerk of the court. Thereafter the judge made a statement in open court regarding his observations. Among other things, he noted that the wеsterly side of the proposed 35-foot roadway was at least 12 feet lower than the general level of the Pacific Electric‘s former right of way; that the
The trial judge‘s view of plaintiffs’ property with the consent of counsel is evidence in the case and “may be used alone or with other evidence to support the findings.” (Noble v. Kertz & Sons Feed etc. Co., 72 Cal.App.2d 153, 159 [164 P.2d 257]; see, also, Wilkins v. City of San Bernardino, 29 Cal.2d 332, 348 [171 P.2d 542]; Safeway Stores v. City Council, San Mateo, 86 Cal.App.2d 277, 284 [194 P.2d 720]; Wheeler v. Gregg, 90 Cal.App.2d 348, 366 [203 P.2d 37]; Sindell v. Smutz, 100 Cal.App.2d 10, 15-16 [222 P.2d 903].)
Plaintiffs argue that the trial judge‘s observations are not evidence because he did not view the premises under storm conditions. They cite on this point Fendley v. City of Anaheim, 110 Cal.App. 731 [294 P. 769]. The plaintiffs there claimed that defendant‘s operation of a power plant jarred their residence and caused damage. The evidence established that most of the discomforts occurred at nighttime. There was no evidence to the contrary and in such circumstances, the trial court‘s inspection of the premises in the daytime was an insufficient basis to sustain its finding that the operation of the plant caused no discomfort to plaintiffs. Here, however, neither the expert witness, Colonel Leeds, nor the trial judge purported to recite existing conditions and physical facts observed on a visit to plaintiffs’ property during time of storm. There was, moreover, undisputed evidence that in stormy weather sea water had extended further landward than plaintiffs’ property. The trial judge merely applied such uncontradicted evidence to his own observations of the physical topography of the premises in determining the safety of residential development on piling construction
In addition, the court found, upon the testimony of the city‘s chief of police, that the construction of houses on pilings might create police problems by reason of the possible use of the areas under the residences for immoral purposes. Municipal ordinances tending to minimize opportunity for immoral practices in relation to other types of construction such as billboards have been held within the police power. (Cusack v. City of Chicago, 242 U.S. 526, 529 [37 S.Ct. 190, 61 L.Ed. 472].) In the light of these considerations, the zoning restriction of plaintiffs’ property for beach recreational purposes appears to be a legitimate exercise of the city‘s police power in the interests of public health, safety, morals and general welfare. Where substantial reason exists to support the determination of the city council in matters of opinion or policy affecting zoning plans, and the propriety of the districting classification is “fairly debatable” in furtherance оf the community development, courts will not substitute their judgment for that of the municipal authority. (Lockard v. City of Los Angeles, supra, 33 Cal.2d 453, 462.)
The fact that plaintiffs may suffer some financial detriment does not require invalidation of the zoning restriction, for “every exercise of the police power is apt to affect adversely the property interest of somebody.” (Zahn v. Board of Public Works, 195 Cal. 497, 512 [234 P. 388].) As was said in Wilkins v. City of San Bernardino, supra, 29 Cal.2d 332, at page 338: “It is implicit in the theory of police power that an individual cannot complain of incidental injury, if the power is exercised for proper purposes of public health, safety, morals and general welfare, and if there is no arbitrary and unreasonable application in the particular case.” While plaintiffs recognize that some value incident to property must yield to the police power, they argue that the zoning restriction as applied to their beach land goes beyond mere regulation and constitutes an unwarrantеd interference with the
Faсtually dissimilar cases cannot avail plaintiffs in their attack upon the zoning restriction upon due process grounds. Typical of such cited cases is Panhandle Eastern Pipe Line Co. v. State Highway Com., 294 U.S. 613 [55 S.Ct. 563, 79 L.Ed. 1090], where the state in the purported exercise of its police power attempted to have a private property owner make at its own expense changes in structural improvements for public safety in travel upon the highway. It was held that such changes could be required of the property owner only upon the payment of compensation-a principle of decision well recognized in relation to the exercise of the police power within constitutional limits. (City of Oakland v. Schenck, 197 Cal. 456, 461 [241 P. 545].)
Here plaintiffs produced no evidence of value relative to the use of their property either before or after passage of the 1941 ordinance. Admittedly they have been paying substantial taxes on their prоperty. Prior to the 1941 ordinance and while the property was zoned for residential use, plaintiffs claimed that it could not be so utilized profitably and they then unsuccessfully sought a rezoning for business purposes. Since 1941, with the zoning limitation upon their property as a beach district and subject to commercial operation for beach recreational purposes, plaintiffs have still made no use of their property as authorized but seek its return to residential classification, a districting which they had previously deemed undesirable. Now they maintain that the 1941 restriction effects a confiscatory taking of their property but they have made no showing that their beach frontage could
Plaintiffs refer to McCarthy‘s above-mentioned letter to the city council in the summer of 1940 advising of the public destruction of the fence they were attempting to build on their property. They contend that the city was thereby put on notice that plaintiffs could not successfully maintain any fence around their beach property and charge a fee for its use for recreаtional activities because of the threat of “mob violence.” But that alleged destruction occurred when plaintiffs’ property was zoned for residential use and more than a year prior to the enactment of the 1941 ordinance. The city‘s liability for such damage is fixed by statute (
Plaintiffs’ claims are entirely immaterial in view of the settled rule that “the purpose or motive of the city officials in passing an ordinance is irrelevant to any inquiry concerning the reasonableness of the ordinance . . . If the conditions justify the enactment of the ordinance, the motives prompting its enactment are of no consequence. If the conditions do not justify the enactment, the inquiry as to motive becomes useless. . . .” (Sunny Slope Water Co. v. City of Pasadena, 1 Cal.2d 87, 99 [33 P.2d 672].) The cases which plaintiffs cite as example of the maladministration of the police power involve factual dissimilarities, which render them inapplicable here: Grand River Dam Authority v. Grand-Hydro, 200 Okla. 157 [201 P.2d 225], where the state passed an act removing the principal value of the property and then sought to “acquire the property by condemnation, basing thе reimbursement to the owner on the reduced value” (p. 228); State ex rel. Tingley v. Gurda, supra, 209 Wis. 63; Grand Trunk Western R. Co. v. City of Detroit, 326 Mich. 387 [40 N.W.2d 195]; and Long v. City of Highland Park, supra, 329 Mich. 46, where the ordinance effected “spot” zoning and there was evidence showing significant relative value differentiations in use of the property; and Dobbins v. Los Angeles, 195 U.S. 223 [25 S.Ct. 18, 49 L.Ed. 169], where a private citizen was led in good faith to make large expenditures on certain property pursuant to the terms of an ordinance and thereafter, without change in existing conditions within the city, a second ordinance was passed prohibiting the previously authorized use, thereby destroying a considerable property investment.
Plaintiffs also argue the error of several rulings of the trial court in the rejection of evidence. The first concerns certain testimony of Mr. McCarthy relative to conversations had with city officials and offered in support of plaintiffs’ claim of improper motive on the part of the city council in its adoption of the 1941 zoning restriction on plaintiffs’ property. Objection to this testimony was properly sustained. The assigned motive or purpose of various city
Plaintiffs next assert that the trial court committed prejudicial error in rejecting certain expert testimony relative to the suitability of plaintiffs’ property for subdivision for residential purposes. But such testimony had only cumulative value in that its admission would have added nothing to what was already before the court through Colonel Leeds’ statements as to the feasibility of the residential development of the beach property and his proposed plan. There was no dispute that plaintiffs’ property could be so subdivided and the court recognized that fact after viewing the premises. Under the circumstancеs plaintiffs suffered no prejudice from the ruling.
Plaintiffs finally argue the point of the trial court‘s disposition of McCarthy‘s above-mentioned letter of July, 1940, notifying the city of the public destruction of the fence which was being erected on the property. The record shows some confusion on this phase of the case. This letter, upon objection, was originally rejected by the trial court but marked for identification. Then later in the trial when McCarthy testified as to the particular acts of “mob violence” experienced more than a year before the 1941 zoning regulation was adopted, the trial court commented that his testimony was “related in the document that is in evidence (the letter).” As aforestated, possible damage to plaintiffs’ property through mob violence and the city‘s liability therefor are matters wholly covered by statute (
As the record has been reviewed, the zoning restriction of the 1941 ordinance (§ 10) on the use of plaintiffs’ property appears to be a fair, just and reasonable regulation for the general welfare of the city as a whole, and not so burdensome that it contravenes the constitutional guarantees in protection of property rights. (See City of Miami Beach v. Hogan (1953), -- Fla. -- [63 So.2d 493, 494-495].)
Edmonds, J., and Traynor, J., concurred.
CARTER, J.--I concur in the judgment of affirmance because I can see no escape from the proposition that the record in this case presents a factual situation as to the reasonableness of the ordinance here in question upon which reаsonable minds might differ. Such being the case it cannot fairly or honestly be said as a matter of law that as applied to plaintiff‘s property the ordinance is so unreasonable as to constitute an arbitrary and unconstitutional exercise of the police power by the defendant.
I have heretofore given expression to my views with respect to the validity of zoning ordinances enacted by city councils and boards of supervisors which arbitrarily and unreasonably limit and restrict the use of private property under the guise that such limitation and restriction constitute a reasonable exercise of the police power. See County of San Diego v. McClurken, 37 Cal.2d 683, 692 [234 P.2d 972]; Clemons v. City of Los Angeles, 36 Cal.2d 95, 107 [222 P.2d 439]; Ayres v. City Council of Los Angeles, 34 Cal.2d 31, 43 [207 P.2d 1, 11 A.L.R.2d 503]; Lockard v. City of Los Angeles, 33 Cal.2d 453, 468 [202 P.2d 38, 7 A.L.R.2d 990]; Wilkins v. City of San Bernardino, 29 Cal.2d 332, 345 [171 P.2d 542].
In the McClurken, Lockard and Wilkins cases, supra, the trial court had held the zoning ordinance in each of said cases unconstitutional as applied to the property there involved and this court by a bare majority reversed the trial court notwithstanding the record contained overwhelming evidence that the ordinance in each of said cases was so arbitrary and unreasonable as to seriously impair the value of the property affected by the ordinance. In the Wilkins case the trial judge viewed the premises. This is likewise true in the case at bar. It has been repeatedly held that the observations of a trial judge in viewing the premises or scene of the controversy is evidence in the case upon which findings may be based (Neel v. Mannings, Inc., 19 Cal.2d 647 [122 P.2d 576]; Gates v. McKinnon, 18 Cal.2d 179 [114 P.2d 576]; Ethel D. Co. v. Industrial Acc. Com., 219 Cal. 699 [28 P.2d 919]; People v. Milner, 122 Cal. 171 [54 P. 833]; Gastine v. Ewing, 65 Cal.App.2d 131 [150 P.2d 266];
Notwithstanding this circumstance a bare majority of this court held that the findings that the enforcement of the ordinance would be oppressive, confiscatory and an unreasonable restriction on plaintiff‘s property rights were not supported by the evidence.
At page 352 of my dissent in the Wilkins case, supra, I stated: “The effect of the majority opinion in this case is to commit to the legislative body the solution of all questions of both fact and law which arisе when a zoning ordinance is attacked for unreasonableness in its application to certain property unjustly affected thereby. This is contrary to the rule which has been uniformly followed in the prior decisions of this court hereinabove cited and discussed. The decision of the trial court is in accord with these decisions and should therefore be affirmed.” In the Lockard case, supra, the majority of this court stated at page 462: “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 looks beyond such determinations and consider in some detail the basic physical facts appearing in the record, such as the charactеr 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.” In my dissent in that case I stated at page 473: “In essence, what the majority opinion holds is this: That the validity of such an ordinance depends upon whether four members of this court think it is reasonable as applied to plaintiffs’ property, they being the judges of both fact and law. Such being the case, the function of the trial court is that of a mere referee to hear the evidence and make his recommendation which has no binding effect as a factual determination. This is indeed a new and unique legal philosophy of law without constitutional or statutory postulate.”
In every zoning case which has come before this court since I have been a member of it, I have taken the position that the law should be that the determination of the reasonableness of zoning ordinances as applied to private property is a
As stated at the beginning of this opinion the record in this case presents a factual situation as to the reasonableness of the ordinance here involved, as applied to plaintiffs’ property, upon which reasonable minds might differ, the trial judge viewed the premises and made findings to the effect that the ordinance as applied to plaintiffs’ property was and is reasonable. In view of this state of the record and the law as it has been declared by this court, I can see no escape from the affirmance of the judgment.
SCHAUER, J.--I dissent. In my view the opinion of the District Court of Appeal, authored by Justice Parker Wood and concurred in by Presiding Justice Shinn and Justice Vallee (reported in 257 P.2d 679-690), adequately discusses and correctly resolves all issues of law presented on this appeal.
From 1923 to June 26, 1941 (when ordinance No. 502 was passed), plaintiff‘s property was zoned as residential prop-
Such taking of private property without compensation, as effected in this case, appears to me to go beyond any reasonable application of the police power of a constitutional state which would maintain capitalism as the foundation of its institutions. Capitalism is not to be ashamed of or whittled away. It encompasses the economic system which has brought our country to world leadership. It denotes a way of living in society and of having dealings with others for reciprocal benefits and with mutual gain; it thrives on free enterprise and competition; and it furnishes incentive to be diligent, efficient and thrifty. It means that a man is free, not a slave; that he alone or collectively with others may bargain for his labor and receive and possess the price thereof; that he alone or collectively with others may invest his earnings in real or othеr property; and that in either event he shall be protected in his right to work and in the ownership and enjoyment of his wealth.
The fact that a particular property is desirable for the public use does not make its private ownership unlawful or warrant using the power of government to destroy its value. Our Constitution envisages a taking for public use in all proper cases but it no more permits to the state a taking without paying fair compensation than it does to an individual. As between the state and an individual our first concern always should be to guard the rights of the individual, not to build up the power of the state. Under my view of constitutional American procedures the state, when it takes private property for the public use, must, if purchase for a
For the reasons more fully developed in the able opinion of Mr. Justice Wood, above referred to, I would reverse the judgment.
SHENK, J.--I dissent. I agree with the District Court of Appeal of the Second Appellate District, Division 3, and would reverse the judgment for the reasons stated by that court in its opinion reported in volume 257 of the Pacific Reporter at pages 679-690, inclusive.
Appellants’ petition for a rehearing was denied January 27, 1954. Shenk, J., and Schauer, J., were of the opinion that the petition should be granted.