Fourcade v. City & County of San Francisco

This is a proceeding in mandamus, instituted in this court, to compel the board of public works of the city and county of San. Francisco to issue a permit for the construction of a milk pasteurizing, bottling, and distributing plant upon the property of petitioners. An alternative writ was issued, and after the issues were joined, a referee, pursuant to the stipulation of all the parties, was appointed to take testimony and report his findings of fact to this court. The same have been filed. The sufficiency and correctness of these findings being conceded, they are approved and accepted by this court.

The material findings of fact made by the referee, succinctly stated, are these: The “Zoning Law” of the city and county of San Francisco is a comprehensive zoning ordinance, adopted by the board of supervisors of the said city and county. This ordinance was adopted after an extensive survey of the entire city and county by the planning commission of said city and county. Subsequent to a careful investigation of the facts thus secured and before the adoption of the ordinance, a tentative zone map of said city and county, dividing said city and county into six different classifications, was prepared. Thereafter numerous public hearings, to which all persons interested were urged to come and present their objections, if any, to the classification thus made, were held by the said commission. After considering the facts elicited by this survey and the objections made at said public hearings the commission prepared a complete zoning ordinance, segregating the entire city and county of San Francisco into six classes. This proposed ordinance was then taken up by the board of supervisors and further public hearings thereon were held by that board, at which all the residents of the city and county of San Francisco were invited to appear and present such objections as they might have to said proposed ordinance, either in whole or in part. Many residents of the said city and county did appear at said hearings and the board of supervisors finally, on October 3, 1921, adopted the ordinance in question (No. 5464, New Series). In ultimately adopting said ordinance said board took into consideration not only the results of the preliminary survey and public hearings held by the city planning commission, but also suggestions made by citizens of the city and county of San Francisco at the public hearings held by said board. Said ordinance was adopted by the board of supervisors, having in view the character of the various districts, their peculiar suitability for particular uses, the conservation of property values, and the direction

The ordinance in question is entitled, an ordinance “regulating and establishing the location of trades, industries and buildings, and the location of buildings designed for specific uses; and establishing the boundaries for said purposes, and providing penalties for the violation of its provisions.” It provides that, “For the purpose of regulating and establishing the location of trades and industries, businesses, dwellings and the location of buildings designed for specific uses, the city and county of San Francisco is hereby divided into six classes of districts, (1) ‘First Residential District,’ (2) ‘Second Residential District,’ (3) ‘Commercial District,’ (4) ‘Light Industrial District,’ (5) ‘Heavy Industrial District,’ (6) ‘Unrestricted District. ’ ”

In a “Second Residential District,” by the provisions of the ordinance, no building may be constructed or altered which shall be used or which shall be intended to be used for any purpose other than for a single family dwelling, flat, apartment house, tenement house, boarding or lodging house, hotel, library, public building, hospital or sanitarium, police station, fire station, philanthropic and eleemosynary institution other than a correctional institution, community clubhouse, etc. It is, in brief, restricted to residential uses exclusively and such uses as public necessity requires.

The petitioner, Fourcade, is the owner of a triangular block, bounded by Duncan Street, Guerrero Street, San Jose Avenue, and the intersection of San Jose Avenue and Guerrero Street in the city and county of San Francisco. This property is situated in a district designated by the said zoning ordinance as a “Second Residential District.” The district in which the block of land is located is, and was at the time of the adoption of said ordinance, devoted almost exclusively to residence purposes. The zoning map shows this “Second Residential District” to be bounded by Army Street, Dolores Street, Twenty-ninth Street, Tiffany Avenue, and Valencia Street, in said city and county, and includes nine blocks, in which area the lot of land owned by petitioners is situated and shows the uses to which the lots within the described district were devoted at the time said ordinance was adopted and also the new buildings which have been constructed since the adoption of said ordinance

Subsequent to the adoption of the ordinance, petitioner Fourcade entered into an agreement with his copetitioner, La Brucherie, wherein the latter agreed to purchase from Fourcade a portion of said triangular . block fronting on Guerrero Street, San Jose Avenue, and Duncan Street, and upon which La Brucherie proposed to erect his pasteurizing plant. It was understood, however, that the consummation of said agreement would depend entirely upon obtaining a permit from the board of public works for the construction on said lot of said plant in accordance with certain plans and specifications. In compliance with the provisions of the zoning ordinance, petitioner La Brucherie applied on two different occasions to the board of supervisors.for a change of zone so as to permit the construction on the described lot

Under the said zoning ordinance the only districts in the city and county of San Francisco in which a building may be erected for the pasteurizing of milk and the bottling thereof are the following: “Light Industrial Districts,” “Heavy Industrial Districts,” and “Unrestricted Districts.” These districts are less suited and less fitted for the stated purposes than a residential district because, in the former, the plant is removed from the districts where the bulk of milk produced is daily consumed. In residential districts, furthermore, there is less possibility of contamination from smoke, dirt, dust, fumes, and odors which ordinarily are to be found in an industrial district.

Milk, finds the referee, is a food staple of great value to human beings. It is of a delicate character and easily subject to contamination, and it is important, therefore, that such a plant as a milk pasteurizing, bottling, and distributing depot should be located as near as reasonable to the homes of the consumers thereof in order to insure its expeditious delivery and reduce the possibility of pollution.

The primary point presented for decision in this case is whether or not the excluding of a milk pasteurizing, bottling, and distributing depot from a residential district is a reasonable exercise of the police power vested in a municipality by virtue of the constitutional grant of power to municipalities. (Art. XI, sec. 11, Const, of Cal.; Enabling Act of 1917, p. 1419.)

At the outset of a discussion of this point it may be stated that the elaborate survey of the police power in relation

[2] It is now settled in this state, in so far as the general. principle of comprehensive zoning is concerned, that the segregation of residences, industries, commercial, and mercantile businesses of divers kinds to particular localities, is a proper and legitimate exercise of the police power as bearing a rational relation to the health, safety and general welfare of the community. (Miller v. Board of Public Works, supra; Zahn v. Board of Public Works, supra.)

[3] The procedure followed by the board of supervisors of the city and county of San- Francisco in adopting the zoning ordinance in question brings that enactment precisely within the principle announced in the above cited cases. We cannot say from the facts found that the districting of the particular area in question is an arbitrary and unreasonable exercise of the police power. [4] It is contended in this behalf that the board of supervisors of the city and county of San Francisco, in adopting the said zoning ordinance, did so without giving reasonable consideration

This contention cannot be sustained. The evidence adduced before the referee shows without contradiction that milk pasteurization plants can be and are successfully operated in industrial districts. And the findings of the referee clearly show that, in adopting the ordinance here assailed, the board of supervisors had in view the character of the various districts, their peculiar suitability for particular uses, the conservation of property values therein and the direction of property development in accordance with a well-considered plan. This finding negatives the contention that said board failed to take into consideration the suitability of the-particular district for the proposed use.

[5] The importance of milk as an article of diet is readily conceded, but it cannot be said that milk must necessarily be pasteurized close to the consumers in order to lessen the possibility of contamination. Until it be found that milk cannot be pasteurized and distributed from districts other than residential with reasonable safety and conveni

It was held in Miller v. Board of Public Works, supra, that as a part of a general comprehensive zoning plan strictly private residential districts may be established. The basis of the rule there announced is the reasonable and necessary protection of the general uniform home districts from the encroachment of foreign and discordant uses, which would ultimately destroy such districts. [6] It is manifest that the introduction of any form of business or industrial use into strictly uniform home districts operates, in a measure at least, to lower the value and depreciate the desirability of surrounding property for residential purposes. A milk pasteurization plant being indisputably an industrial use clearly would be out of harmony in a residential district.

[7] The power of a municipality to establish and maintain residential and quasi-residential districts and to exclude therefrom all nonconforming and conflicting uses is now established in this state. (Miller v. Board of Public Works, supra; Zahn v. Board of Public Works, supra.) And when establishing such districts the legislative body of a municipality decides that it is feasible and essential to the general welfare of the community to exclude pasteurizing plants from the same, it is not within the province of this court to dispute the wisdom of their judgment. [8] The board of supervisors having determined the question in favor of the exclusion of milk pasteurization plants from residential districts, that determination is final so far as this court is concerned. “It is scarcely necessary to reiterate here the well-recognized principle that courts are loath to substitute their judgment as to the necessity for a particular enactment for the legislative judgment as to the need of such enactment with reference to the exercise of the police power. A large discretion is vested in the legislative branch of the government with reference to the exercise of the police power. . . . Every intendment is to be indulged by the courts in favor of the validity of its exercise, and unless the measure is clearly oppressive it will be deemed to be within the purview of that power. . . . The courts may differ with

Petitioners’ points and authorities, which accompanied the petition for the writ, presented, in addition to the points hereinbefore discussed and decided, several other points which were not urged nor in anywise referred to in the briefs which were finally filed in the case and upon which the case was submitted for decision. We take it, therefore, that the points last mentioned have been abandoned by petitoners. Indeed, they may well have been abandoned because they were decided adversly to the contention of petitioners in the recent cases of Miller v. Board of Public Works, supra, and Zahn v. Board of Public Works, supra, which were decided subsequent to the filing of the petition in this case. It will be unnecessary, therefore, to discuss and decide the remaining points which were originally urged in support of the petition for the writ.

A peremptory writ is denied and the alternative writ is discharged.

Lawlor, J., Seawell, J., Bichards, J., Houser, J., pro tern., and Myers, C. J., concurred.