Plаintiffs herein, numbering 25 individual and one corporate property owners whose properties Re within 3,000 feet of 115 acres of land owned or leased by defendant Gregg, instituted this action to have declared unconstitutional and void the action of the council of the city of Los Angeles whereby, on October 2, 1946, said council granted to defendant Gregg a variance permit (in reality a conditional use
By their complaint, plaintiffs sought a decree:
(1) Declaring void a variance permit (really, as stated above, a conditional use permit) granted defendant Gregg by defendant city by which Gregg was authorized to excavate and remove rock, sand and gravel from the permit area;
(2) Enjoining the city from granting any permit for the commercial production of rock, sand and gravel from any lands included within the so-called community area;
(3) Enjoining defendant Gregg from (a) exercising any right, benefit or privilege under the permit granted him by the city, and (b) from conducting any operation for the commercial production of rock, sand and gravel within the so-called community area;
(4) As against defendant Gregg the recovery of actual damages “accrued” to the date of judgment, together with $250,000 punitive damages;
(5) General relief.
- Defendants filed separate answers each denying the material allegations of the complaint. Following trial the court rendered judgment for defendants, but in so doing required defendant Gregg to comply with certain operational conditions imposed by its decree, in addition to the conditions imposed by the city in its permit.
The conditions imposed by defendant city were:
“1. That the applicant (Gregg) construct a 6-foot cyclone type mesh wire fence around the said property, includingbarbed wire on the top of said fence, providing the Fire Department grants permission for same.
“2. That no permanent plant, building or structure be installed or maintained on said property and that all material excavated be mined by an electrically powered shovel and primary crusher and transported by a conveyor belt system running through a tunnel or tunnels under Glenoaks Boulevard to the plant now operated by applicant, lying southwesterly of said boulevard and processed at said plant.
“3. That a set-back line of 50 feet from all property lines and existing streets be maintained and that slopes of excavations be maintained at one foot to one foot.
“4. That the area between all property lines or street lines and 50 foot set-back be screen planted progressively as excavations proceed.”
To the foregoing conditions the court added the following:
”1. That defendant John D. Gregg shall not conduct any operation for the excavation of rock, sand or gravel from the so-called ‘Critical’ area, as described in the complaint herein, lying northeasterly of Glenoaks Boulevard at any time before 6 :00 o ’clock A.M. of any day, or after 8:00 o ’clock P.M. of any day, excepting that the said defendant John D. Gregg shall not be prohibited from making any reasonable or necessary repairs to equipment in said area during other hours.
‘‘2. That said defendant John D. Gregg house in any primary crusher which is operated in that portion of the so-called ‘Critical’ area lying northeasterly of Glenoaks Boulevard so as to minimize any noise emanating therefrom.
“3. That in connection with any and all drag-line operations on the banks or slopes of any pit excavated by defendant John D. Gregg in that part of the so-called ‘Critical’ area lying northeasterly of Glenoaks Boulevard, that the said defendant John D. Gregg shall cause the banks or slopes of said excavation to be sprinkled with water prior to any such drag-line operations, so as to minimize the possibility of dust from any such operation being carried by the winds beyond the boundaries of said so-called ‘Critical’ area.
“4. That said defendant John D. Gregg, as soon as reasonably practicable and as soon as material and equipment is available, shall complete the construction of the dust collection system in his rock crusher plant located southwesterly of Glenoaks Boulevard, the construction of which system was commenced prior to the commencement of this action.”
Although residences could be and have been constructed in the permit area, there was substantial evidence that, “As regards the permit area, I believe the most profitable use to which that property can be put is for the extraction of rock, sand, and gravel. The highest and best use means the highest, best and most profitable. The word ‘profitable’ is commonly connected with the highest and best, and means that use which will produce the highest rental value or leasehold value or market value of the fee”; that the highest and best use of the entire area including the permit area, is “to develop the natural resources that exist upon it,” namely, rock and sand. There was also evidence showing the proximity of the permit area to numerous gravel pits, both operating and
There was also testimony given by qualified experts that none of plaintiffs’ properties were adversely affected “value-wise,” by reason of the action of the city council in granting the conditional use permit to defendant Gregg. That the depreciation in value of the properties since October 1, 1946, was due to the general decline in the values of real estate in the Los Angeles area in general and in the area district here in question in particular. That the decline in values in the San Fernando Valley is comparable to the decline in such values throughout Los Angeles County and the United States since October 1, 1946, the date of the permit here challenged.
Plaintiffs presented evidence that in 1914 the lands here in question were subdivided for residential-agricultural use and were by deed restrictions limited to such use for the ensuing 20 years. That thereupon these lands were offered for sale and a considerable amount thereof was sold and developed for residential uses. That in 1914 the area here in question, then known as a pаrt of Hansen Heights, was annexed to the city of Los Angeles; that in 1919, the residents of that area, in conjunction with those • of a larger area, organized Municipal Improvement District No. 9 and bonded their properties for $150,000 to obtain, and assure, an adequate water supply for this area; that in July, 1925, nearly nine years before the expiration of the aforesaid deed restrictions, the defendant city enacted its Zoning Ordinance No. 52421, by which this community area was declared to be a residential area, and from which the mining of rock aggregates was excluded; that in June, 1926; May, 1927; August 15, 1927; and August 27, 1927, by its enactment of ordinances numbered respectively 55129, 57958, 58624 and 58375, defendant city reaffirmed its zoning classification of this community area as a residential area, and its exclusion therefrom of the business of mining rock aggregates; that in June, 1926, and in June, 1928, upon petition of the people, defendant city consummated proceedings for the concrete paving of about 7% miles of the public streets within sаid area, and assessed the costs of said improvement upon the lands within said area; that in 1928, upon petition of the people, the defendant city consummated proceedings for the organization of Municipal Improvement District No. 57, and the acquisition and improvement of a 15-aere public park and recreation center, on the westerly side of Wicks Avenue, immediately southerly
Prom a perusal of the voluminous record herein consisting of a reporter’s transcript containing 5,082 pages of testimony, a clerk’s transcript of 174 pages, 288 exhibits and 67 numbered paragraphs of findings, we deem it a fair statement to say that prior to June 1, 1946, the city of Los Angeles had no comprehensive zoning ordinance, rather, there existed а series of heterogeneous zoning ordinances applicable to various parts of the municipality and which, as testimony in this case indicates, were considered as stopgap ordinances to be eventually absorbed by a single comprehensive zoning ordinance. Contained in all of these ordinances were provisions for exceptions, and many were granted.
The first comprehensive zoning ordinance and the one with which we are here concerned, was adopted and became effective June 1, 1946, being Ordinance No. 90500 of defendant city. The record reflects that during the period of more than a year prior to its adoption while surveys were being made and the ordinance was in process of preparation, defendant Gregg’s property, which is the subject of this appeal, was shown on the tentative zoning map as M-3, which would permit the excavation of rock thereon. However, when the ordinance was finally adоpted by the city council it absolutely classified defendant Gregg’s property in an R-A zone, which permitted residential and agricultural uses and excluded the excavation of rock, sand or gravel.
Shortly after the effective date of the foregoing ordinance, defendant Gregg, pursuant to the provisions of section 12.24 thereof, applied to the planning commission of defendant city for a permit to exсavate about 105 acres of the property owned by him, for the development of the natural resources on his property, namely rock, sand and gravel. On July 26, 1947, said planning commission denied defendant Gregg’s application upon the grounds (1) that an excavation for the commercial production of rock, sand, and gravel, was not the highest and best use of said land; (2) that said property is adapted to residential development and use; (3) that the “RA” zoning then upon said property, was appropriate for said property, and for that general area, as evidenced by the residential development in that immediate neighborhood; (4) that the pit which would be left after the excavation was completed, would create an unsightly and dangerous condition, detrimental to the public welfare and safety, and would leave the land in a condition unsuited for use in keeping with others in that community; (5) that the creation of such a condition would adversely affeсt individual property rights, and would interfere with the normal growth of that community, and (6) would conflict with the objectives of the city’s master plan of zoning.
Thereupon, defendant Gregg, in accordance with further provisions of the ordinance, appealed to the city council from the adverse ruling by the city planning commission. The exhibits on file demonstrate that the claimed merits and demerits of defendant Gregg’s application were presented both to the city planning commission and to the city council in detail, and afforded both of these bodies ample evidence upon which to arrive at an informed opinion and conclusion.
A public hearing on defendant Gregg’s application was first conducted before the planning committee of the city council and later before the council itself. Both the proponent and
Appellants’ first ground of appeal is that the grant of the foregoing permit to defendant Gregg is unconstitutional and void because such action is in excess of the authority delegated to the council by Ordinance No. 90500. This contention is predicated upon the claim that the authority delegated by the ordinance to the council is expressly limited to permit only such uses of property as arе “essential or desirable to the public convenience qr welfare, and are in harmony with the various elements or objectives of the Master Plan.” That the stated “objectives” of the master plan as contained in section 12.02 of the ordinance preclude the granting of a permit such as the one here under consideration, which according to appellants, would injuriously affect the enjoyment by them of their properties, would jeopardize the safety of children in the community, and would militate against the promotion of the “health, safety and general welfare, all in accordance with a comprehensive plan” (Ordinance 90500, §12.02).
Sections 12.24 and 12.32-E of the ordinance authorize the council to grant a conditional use permit upon a finding that the permitted uses of the property are essential or desirable to the public convenience or welfare, and are in harmony with the various elements or objectives of the master plаn. In the proceedings now before us the council in granting the challenged permit affirmatively found those conditions to exist and further found wherein the planning commission in theretofore denying the permit, was in error. The fact that the council made such findings raises the presumption that the existence of the necessary facts had been ascertained and found
(Northside Property Owners Assoc.
v.
County of Los Angeles,
The necessity for a conditional use permit is to be determined under section 12.24 of the ordinance by the planning commission or the city council, and their judgment should be final unless it clearly appears to be arbitrary or contrary to the law. Where a zoning ordinance authorizes the planning commission or city council to grant a conditional use permit upon finding the existence of certain facts, their action will not be disturbed by the courts in the absence of a clear and convincing showing of the abuse of the power of discretion vested in them
(Otis
v.
City of Los Angeles,
The determination of what harmonizes with the elements and objectives of the master zoning plan having been committed to the discretion of the locаl governing bodies, the burden of proving that the city council acted without substantial evidence and in excess of jurisdiction, rested upon appellants. And this requirement is not satisfied by a mere showing that there was a conflict in the evidence, or that the city council on the basis of the record before it, might have been justified in deciding differently, or that the record before the council might have supported a conclusion contrary to that which was arrived at
(Hogan
v.
Retirement Board,
As was said by the Supreme Court in
Gaylord
v.
City of Pasadena,
“Even a casual observer of governmental growth and development must have observed the ever-increasing multiplicity and complexity of administrative affairs—national, state, and municipal—and even the occasional reader of the law must have perceived that from necessity, if for no better grounded reason, it has become increasingly imperative that many qwasi-legislative and quasi-judicial functions, which in similar communities and under more primitive conditions were performed directly by the legislative or judicial branches of the government, are intrusted to departments, boards, commissions and agents. No sound objection can longer be successfully advanced to this growing method of transacting public business. These things must be done in this way or they cannot be done at all, and their doing, in a very real sense, makes for the safety of the republic, and is thus sanctioned by the highest law. For, as the supreme court of the United States declares: ‘Indeed, it is not too much to say that a •denial to Congress of the right, under the Constitution, to delegate the power to determine some fact or the state of things upon which the enforcement of its enactment depends, would be “to stop the wheels of government” and bring about con-
It must therefore be held that the power granted by section 12.24 of the ordinance to the planning commission in the first instance, and to the city council on appeal, to grant conditional use permits in the particular instances specified, was not intended to, nor does it confer any power to amend or alter the zoning ordinance itself, nor does it delegate any legislative power. Neither is it a grant of power to create variances for nonconforming uses. That power is contained in section 12.26 of the ordinance. It will be noted that conditionаl use permits are confined to uses of public concern, such as airports, cemeteries, development of natural resources, public utilities, educational institutions, libraries, and governmental enterprises. By the specific terms of the ordinance such uses are permitted in any zoning district subject only to a finding by the planning commission, in the first instance, or the city council on appeal, that the use is essential or desirable to the public convenience or welfare. The decision to grant a conditional use permit does not create a new zone. It merely affirms as a fact the existence of the circumstances under which the ordinance by its terms prescribes that such permit shall issue.
Appellants next assail the granting of the conditional use permit herein as unconstitutional and void because, as they contend, the act is an unreasonable, and therefore, an unconstitutional exercise of the police power. As we view appellants’ argument in this regard, they do not attack the constitutionality of the ordinance, indeed, they rely upon it and attack as unconstitutional the action of the city council in granting the conditional use permit in this particular
The transcript contains volume after volume of additional testimony and evidence showing the public necessity and the reasonablenеss of the city council’s action in granting the permit.
In addition, there is the fact that by stipulation the trial judge spent two whole days personally viewing the entire area, including all of the rock plants, and also including all of the properties owned by plaintiffs herein. It is well settled that when a trial judge by stipulation of the parties, as here, views the territory involved in an action, his observations on such a tour become evidence in the case
(Safeway Stores, Inc.
v.
City Council,
As a further ground for reversal, appellants assert that the permit granted respondent Gregg is void, “because the City is estopped in the circumstances of this case, to thus impair the personal and property rights” of appellants.
As we have heretofore pointed out, no person has a vested right in the exercise of the police power and exercise of the same may not be limited by private contract or restrictive covenants
(Acker
v.
Baldwin, supra,
p. 345). Private agreements are not to be considered when determining the validity of a zoning ordinance
(O’Rourke
v.
Teeters,
Appellants next contend that in this action in equity they are entitled to an injunction to prevent a threatened interference with their constitutional right to own and enjoy their property. Although not specifically stated in appellants’ briefs, an examination of the pleadings coupled with the arguments advanced in their briefs leads us to the conclusion that appellants seek to enjoin respondent Gregg’s operations as an anticipated nuisance. When viewed in the light of the conditions imposed by the city council in granting the conditional use permit and the additional conditions imposed by the triаl court in its judgment, we are persuaded that the conduct of respondent Gregg’s operations, subject to the foregoing conditions imposed thereon, justified the conclusion of the trial court that the same would not result in any substantial injury to appellants nor to the ownership or enjoyment of their property.
Where as here, the operations in question could not be characterized as a nuisance
per se,
the court was justified in following a well established rule of law which provides that
There is substantial evidence in the record herein that respondent Gregg’s plant is the most modern in the San Fernando Valley and that the operation of the plant under the restrictive terms of the conditional use permit and the judgment will constitute a reasonable method of operation in the manner usually and ordinarily governing the operation of rock plants. The court was therefore justified in giving heed to the aforesaid rule, that in proper cases it will not enjoin the conduct of a defendant’s entire business where such business is not a nuisance per se if less measure of restriction will afford plaintiffs the relief to which they may be entitled.
Appellants’ contention that the court in the present action in equity was clothed with jurisdiction to absolutely prohibit respondent Gregg’s operations is further answered by the provisions of section 731a of the Code of Civil Procedure reading as follows:
“731a. [Manufacturing or commercial operations in established zones not enjoinable nor deemed nuisance: Operation producing offensive odors.] Whenever any city, city and county, or county shall have established zones or districts under authority of law wherein certain manufacturing or commercial uses are expressly permitted, no person or persons, firm or corporation shall be enjoined or restrained by the injunctive process from the reasonable and necessary operation in any such industrial or commercial zone of any useexpressly permitted therein,' nor shall such use be deemed a nuisance without evidence of the employment of unnecessary and injurious methods of operation ...”
While respondent Gregg was not operating in a zone wherein “manufacturing or commercial uses are expressly permitted,” he was operating in a zone in which the ordinanсe authorized the issuance of conditional use permits, and the evidence adduced at the trial brings this case within the provisions of section 731a of the Code of Civil Procedure above quoted. There being no evidence that respondent Gregg employed, or under the restrictions of the permit and judgment, would employ unnecessary and injurious methods of operation, the trial court was not authorized to grant appellants injunctive relief
(McNeill
v.
Redington,
Furthermore, section 3482 of the Civil Code reads as follows :
. “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.” Ordinance No. 90500, having been duly enacted by the city of Los Angeles within the scope of the authority conferred upon it, has the same force within its corporate limits as a statute passed by the Legislature has throughout the state
(Monterey Club
v.
Superior Court,
Appellаnts challenge 46 of the 67 numbered paragraphs of Findings of Fact, declaring in that regard that “There is no evidence in this record which supports any of the Findings of Fact here challenged. Wherein a so-called Finding of Fact, is a conclusion of law, such conclusion is without any support in legal authority.”
It would unduly prolong this already lengthy opinion to discuss seriatim the challenged findings and the objections made thereto. Suffice it to say that the affirmative findings are responsive to the issues framed and supported by substantial evidence, while the negative findings are justified by the rule that where no evidence is introduced in support of an issue findings should be made thereon against the party who has the burden of proof
(Haney
v.
Kinevan,
We have noted the other contentions made on this appeal, one by appellants that actual and punitive damages may be recovered in this form of action, and the other by respondents that appellants’ ease is moot by reason of the adoption of an ordinance by respondent city on January 5, 1948, amending sections 12.20 and 12.24 of the Los Angeles Municipal Code, of which Municipal Code Ordinance No. 90500 (here under consideration) is a part. In view of the foregoing conclusions at which we have arrived, we deem it unnecessary to discuss them.
For the foregoing reasons the judgment is affirmed.
York, P. J., and Doran, J., concurred.
A petition for a rehearing was denied March 21, 1949, and appellants’ petition for a hearing by the Supreme Court was denied April 28, 1949.