Jones v. City of Los Angeles

This is an action to enjoin the enforcement of a zoning ordinance of the City of Los Angeles. The said ordinance was enacted independently of the general zon

In March, 1927, the City of Los Angeles annexed the territory known as the Mar Vista District. At that time, there were already in operation in this district four sanitariums for the treatment of nervous diseases: the Casa Del Mar Sanitarium, the Marshall Manor Sanitarium, the St. Erne Sanitarium, and the Wittman Home for Children. These institutions take as patients only persons suffering from the milder forms of mental disorder. No insane persons are admitted. Each institution has been established by a substantial investment in land, buildings and equipment.

The above-mentioned zoning ordinance, adopted on August 11, 1927, some months after the annexation of the Mar Vista District, excluded that territory from the area in which the establishment and maintenance of such sanitariums was permitted. When the ordinance went into effect, plaintiffs, as the owners of the institutions, sought to enjoin its enforcement. The Superior Court of Los Angeles County, in each of the actions, denied the relief prayed for, and appeals were then taken. Because their grounds are practically identical, the four appeals were, by stipulation, consolidated, and will be considered together in this opinion.

A preliminary question which may readily be disposed of relates to the availability of the equitable remedy. It is settled that where a penal statute causes irreparable damage to property rights, the injured party may attack its constitutionality by an action to enjoin its enforcement. (San Diego Tuberculosis Assn. v. East San Diego, 186 Cal. 252 [ 17 A. L. R. 513 , 200 Pac. 393 ] ; Abbey Land Co. v. San Mateo, 167 Cal. 440 [Ann. Cas. 1915C, 804, 52 L. R. A. (N. S.) 408 , 139 Pac. 1068 ].) Hence, if the ordinance is unconstitutional in its application to these plaintiffs, they are entitled to the decree which they seek.

The evidence shows and the lower court found that the restricted districts were mainly residential in character. This is sufficient to justify the exclusion of businesses such as that carried on by plaintiffs. The decisions uphold the validity of ordinances excluding from residential districts property uses much less incongruous than these, as, for example, fiats, stores and business buildings. (See State v. Houghton, 164 Minn. 146 [ 54 A. L. R. 1012 , 204 N. W. 569 ] ; Ware v. Wichita, 113 Kan. 153 [ 214 Pac. 99 ] ; State v. New Orleans, 154 La. 271 [ 33 A. L. R. 260 , 97 South. 440 ]; Spector v. Building Inspector, 250 Mass. 63 [ 145 N.

An appellate court should not permit itself to be drawn into a minute examination of alleged discriminatory operation of such ordinances if, broadly considered, a reasonable basis of classification exists. (Zahn v. Board of Public Works, supra; Bettman, Constitutionality of Zoning, 37 Harv. L. Rev. 834 , 850.) Bearing in mind the object of the ordinance and the findings of the court, we are satisfied that no unconstitutional discrimination has been made.

We have thus arrived at this conclusion: The ordinance in question, in so far as it prohibits the establishment of hospitals for the treatment of nervous diseases in certain districts in the City of Los Angeles, and permits their establishment in other specified districts, is valid. The businesses so restricted are proper subjects of such regulation, and hence the ordinance does not result in a denial of due process. The classification of districts is reasonable and not arbitrary and therefore there is no denial of equal protection of the laws. This much is clear, we feel, with respect to the establishment of new businesses of this character in the prohibited districts. But does the same result necessarily follow with regard to existing businesses in these districts 1 In other words, does the broad view of the police

We have already emphasized the fact that courts, in their consideration of zoning legislation, have not deemed themselves bound by their prior decisions on the legislative regulation or prohibition of nuisances. They have recognized that the right to use private property may be restricted by an ordinance which follows a reasonable plan, even though the use is neithér a nuisance per se, nor a menace to health, safety or morals in the particular district from which it is excluded. It would seem, therefore, at first glance, that the zoning decisions reach the conclusion that businesses may be prohibited in the sense of being excluded from specified districts, although they do not come within any reasonable view of what constitutes a nuisance. An examination of those decisions, however, reveals the fact "that nearly all of them deal with the attempt to establish businesses in the prohibited areas. They decide nothing more than this: The right to engage in a lawful and not dangerous business in a certain area may be taken away in pursuance of a reasonable zoning scheme. They do not decide that an established and not dangerous business, operating in a lawful manner in a certain territory, may be eradicated in pursuance of a reasonable zoning scheme. That problem, which is the important problem of this case, has, so far as we are aware, only been squarely presented to appellate courts in a few instances. The reason for the paucity of decisions is illuminating : Zoning laws have almost invariably been prospective in nature. Indeed, in some states, including Kansas, Ohio, Wisconsin, Illinois, Massachusetts, Maine and New Hampshire, the enabling statute's which give the zoning power to municipalities expressly provide that no retroactive ordinances shall be passed. (See Baker, Legal Aspects of Zoning, p. 158, note 220.)

As a matter of practice, also, those who have drafted ordinances have usually proceeded with due regard for valuable, vested property interests, and have permitted existing, nonconforming uses to remain. They are very generally agreed that the destruction of an existing nonconforming use would be a dangerous innovation of doubtful consti

These.1, ]same views have been expressed in a number of decisions. In Pelham View Apartments, Inc., v. Switzer, 130 Misc. Rep. 545 [ 224 N. Y. Supp. 56 ], a building permit had been issued for the erection of an apartment house, and the petitioner had borrowed money, bought property, prepared plans, and begun construction, in reliance upon the permit. Thereafter, a new zoning law was enacted, under which such a permit could not be granted, and an attempt was made to revoke it. The court said: “While it is unfor

In Atkinson v. Piper, 181 Wis. 519 [ 195 N. W. 544 ], retroactive legislation of this type was strongly disapproved, and the court construed the particular act as prospective in its operation, although the buildings in question were only in the process of construction. The Wisconsin court made a similar decision in the later case of Rosenberg v. Village of Whitefish Bay, 199 Wis. 214 [ 225 N. W. 838 ], where construction was not yet under way, but the owner of the land had incurred expenses in the preparation of plans for the structure. r?-

In holding another statute not to be retroactive, the New Jersey court said in Frank J. Durkin Lumber Co. v. Fitzsimmons, (N. J. Err. & App.) 147 Atl. 555 , 558: “ ,. . . may a municipality, without making compensation, estop an owner from continuing a use that is in actuality, that was begun and continued lawfully, and that becomes unlawful only because the municipality has so ordained? . . . Recognizing that the granting of a permit and the subsequent beginning of work thereunder do clothe the owner with certain rights against "municipal interference, this court very recently, in two instances, refused a municipality the privilege of revoking a permit theretofore given. ... It seems that a logical application of the same principle is to recognize the right to continue, as against subsequent zoning interference, a use that was actually instituted, that was lawful when instituted, and that has been actively and constantly maintained.” (Italics ours.)

In response to the charge that exemption of existing nonconforming uses would be discriminatory, the courts have very generally held the exemption to be valid and necessary. (Baker, supra, p. 144.) As the court said in City of Aurora v. Burns, 319 Ill. 84 [ 149 N. E. 784 , 788] : “The building zone ordinance . . . permits lawful uses of buildings at the time of the passage of the ordinance, although not in conformity with its provisions, to continue thereafter. This exception is made so that the ordinance shall not have a retroactive operation. It would be manifestly unjust to deprive the owner of property of the use to which it was lawfully devoted when the ordinance became effective.” In Spector v. Building Inspector, 250 Mass. 63 [ 145 N. E. 265 , 268], the same conclusion is reached: “To exempt buildings already devoted to a use from a prohibition of such use of other buildings or buildings thereafter erected in a specified area is not unequal but lawful.” This court has also spoken to the same effect in Zahn v. Board of Public Works, 195 Cal. 497 , where it is said on page 512: “As to the objection that the ordinance was not retroactive but permitted the continuance of existing uses, it will suffice to say that for the purpose of zoning it is not necessary that -existing uses shall be removed. . . . The ordinance was enacted with the purpose of. directing the present and future development of the city and no attempt was made to remold its past development. To have required preliminarily to an enactment for future development, that all past development, not in conformity therewith, should be removed might be impractical. That the council did not attempt such a task has no tendency to show discrimination against property to be de

It therefore appears that the instant case involves a situation materially different from that presented in the' usual zoning case. The exercise of power in this instance is, on the whole, far more drastic than in those in which a mere right to engage in a particular business is restricted. We are asked to uphold a municipal ordinance which destroys valuable businesses, built up over a period of years. If we do so on the ground that this is a proper exercise of the police power in the enactment of zoning legislation, then it follows that the same thing may be done to apartment houses, flats, or stores. The establishment of many lawful and not dangerous businesses in a city would then become an extremely hazardous undertaking. At any time, in pursuance of a reasonable plan for its future development, the city could prohibit the continuance of the businesses, and make property valueless which was previously constructed and devoted to a useful purpose. It may well be that in the course of years one of the outlying permitted districts in the present scheme will become residential in character, and will, by another ordinance, be placed in the prohibited area. If the plaintiffs, at great expense, reestablish themselves in that district, they might be pursued and again eradicated. All this is to be justified under the police power as a proper taking of private property for public use, without compensation. The approval of such a. doctrine would be a blow to rights in private property such as this court has never before witnessed. Only a paramount and compelling public necessity could sanction so extraordinary an interference with useful business.

What is the public necessity here? We have considered the ordinance solely as modern zoning legislation, for such is undoubtedly its character. There is, it is true, testimony in the record to show that the district was in some respects a less agreeable residential section than it would be if the businesses of plaintiffs were removed. Neighbors complained that the presence of the sanitariums depreciated the value of their own property. There is similar testimony as to occasional noises made by unruly patients, and of several patients having escaped; although in this connection the trial court found that “none of the inmates of any of said four sani

From the evidence the court found that the conduct and operation of plaintiffs’ businesses will tend to and docs ‘ ‘ impair and endanger the health, safety, morals, convenience, comfort and welfare of the public, and will prevent the said district from obtaining its proper growth and from fully developing into the residential district to which it is devoted”. Another finding is that “it is not true that said sanitarium . . . will not create, and is not a nuisance”. Assuming that the above statements are intended as a finding that the sanitariums of plaintiffs are nuisances as now conducted, it hardly seems supported by the record. For a discussion of similar evidence, see Jardine v. Pasadena, 199 Cal. 64 , 75 [ 48 A. L. R. 509 , 248 Pac. 225 ], But even such a finding does not go to the root of the matter, and is, so far as the validity of this ordinance is concerned, wholly immaterial. The individual, or the city, still has the right to enjoin acts which constitute a private or public nuisance and this right is given as a protection against the improper conduct of any lawful business. (Jardine v. Pasadena, supra; Adams v. Kalamazoo Ice & Fuel Co., 245 Mich. 261 [ 222 N. W. 86 ].) This ordinance expressly applies to any hospitals, asylums, and sanitariums for the care or treatment of persons suffering from “mental or nervous diseases”. It affects all such places in the same manner, irrespective of whether they are conducted properly or improperly. The question of its constitutional validity must, therefore, be considered apart from the particular conditions alleged to exist in the establishments maintained by plaintiffs.

As so considered, we are satisfied that it cannot find support in the legislative power to prohibit nuisances. A properly conducted sanitarium for the care and treatment of persons affected with “mental or nervous diseases” cannot, we feel, be held to constitute a nuisance. Mr. Justice Olney said in San Diego Tuberculosis Assn. v. East San Diego, 186 Cal. 252 , 254 [ 17 A. L. R. 513 , 200 Pac. 393 ] : “That a well-conducted, modern hospital, even pne for the treatment of contagious and infectious diseases, is not such a menace, but, on the contrary, one of the most

We repeat, therefore, that the ordinance involved herein is to be supported upon principles of zoning and not as a prohibition directed against actual nuisances. With this conclusion as a basis, it becomes necessary to determine whether that part of the ordinance which prohibits the further operation or maintenance of plaintiffs ’ businesses is a reasonable means by which the zoning power may be exercised. And here the distinction between the power to prohibit nuisances and the power to zone is exceedingly important. The power over nuisances is more circumscribed in its objects; but once an undoubted menace to public health, safety, or morals is shown, the method of protection may be drastic. Private businesses may be wholly prohibited, where their danger is sufficiently great; and other businesses, no matter how well established and how great the resulting loss, may be excluded from certain districts where, by reason of the circumstances, their maintenance has become a public nuisance in those districts. In these cases, the public welfare demands even the destruction of existing property interests. Examples of decisions of this type are Ex parte Quong Wo, 161 Cal. 220 [ 118 Pac. 714 ], involving a laundry, and Hadacheck v. Sebastian, 239 U. S. 394 [Ann. Cas. 1917B, 927, 60 L. Ed. 348 , 36 Sup. Ct. Rep. 143 ], involving a brick-yard. While the latter case is an extreme illustration of the hardship which may result from an exercise of police power, it can be justified on the ground of nuisance regulation. It is not a zoning case at all. (See 39 Yale L.

Seemingly in opposition to these widely held views is the conclusion reached by the Supreme Court of Louisiana, with respect to an ordinance of the city of New Orleans which prohibited the establishment or maintenance of any business within a specified district, and provided that all businesses then

These decisions are, we think, distinguishable from the instant case; but even if they were not distinguishable, we should not be disposed to follow them, for they exhibit, in our opinion, a confusion between the objects of zoning and nuisance regulation. (See 39 Yale L. J. 738 .)

A more drastic decision, perhaps, is Village of Euclid v. Ambler Realty Co., 272 U. S. 365 [ 54 A. L. R. 1016 , 71 L. Ed. 303 , 47 Sup. Ct. Rep. 114 ], already mentioned in this opinion. There the ordinance created a residential district which included a large tract of land owned by the Ambler Realty Company, which had been held vacant for industrial purposes. The effect of the restrictive provisions of the ordinance was materially to impair the market value of the land. Although the lower federal court was of the opinion that this was an unreasonable interference with private property, the Supreme Court of the United States finally upheld it, three justices dissenting. This is an extreme case, and

We do not mean to hold that those engaged in the zoning of cities must ahvays be faced with the impossibility of eradicating the nonconforming uses. In some jurisdictions thi§ problem has been dealt with by provisions against alteration or enlargement of existing structures, or rebuilding after their destruction. (See State v. Hillman, 110 Conn. 92 [ 147 Atl. 294 .] ; Appeal of Ward, 289 Pa. 458 [ 137 Atl. 630 ]; City of Earle v. Shackleford, 177 Ark. 291 [ 6 S. W. (2d) 294 ].) But ordinarily the added benefit to the majority of the residents of the restricted district should not be received at the expense of others. If the city desires to abolish the nonconforming use, this may be a legitimate object

“Government could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most, if not all cases, there must be an exercise of eminent' domain and compensation to sustain the act. So the question depends upon the particular facts. The greatest weight is given to the judgment of the legislature, but it always is open to interested parties to contend that the legislature has gone beyond its constitutional power.”

Further on, the learned justice remarks: “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. ... In general, it is not plain that a man’s misfortunes or necessities will justify his shifting the damages to his neighbor’s shoulders. ... We are in danger.of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the" desire by a shorter cut than the constitutional way of paying for- the change. ’ ’

The principles set forth in the Pennsylvania Coal Company case were approved in Piper v. Ekern, 180 Wis. 586 [ 34 A. L. R. 32 , 194 N. W. 159 , 162], where a statute limiting the height of buildings surrounding the state capítol was held unconstitutional. The court said: “ ... in one sense such a restriction under the police power does not transfer property from the private owner to the public, as

Even where the destruction of private property is warranted by vital public necessity, it is sometimes the legislative practice to compensate the injured owner. Such, for example, was the case with our legislation directed toward the eradication of bovine tuberculosis by the destruction of diseased cattle. (See Patrick v. Riley, 209 Cal. 350 [ 287 Pac. 455 ].)

Our-conclusion is that where, as here, a retroactive .ordinance causes substantial injury and the prohibited business^ is not a nuisance, the ordinance is to that extent an unreasonable and unjustifiable exercise of police power. Whether under our present law there exists the power to eliminate the nonconforming use by payment of compensation for the lo'ss suffered, is a question not presented by this case, and one which we therefore do not attempt to determine.

It follows that the present ordinance is valid in so far as it prohibits the further establishment of businesses of this type in the restricted districts; and is invalid in its application to these plaintiffs.

The judgment is therefore reversed.

Richards, J., Seawell, J., Curtis, J., Preston, J., and Waste, C. J., concurred.

Rehearing denied.

Seawell, J., Shenk, J., and Curtis, J., dissented.