Town of Los Altos Hills v. Adobe Creek Properties, Inc.

Opinion

David Bellucci and Beverly A. Bellucci, the plaintiffs in an action for declaratory relief against the respondent Town of Los Altos Hills, an incorporated municipality, and the defendants, along with appel

It is concluded that the zoning ordinances of the city do not deny equal protection of the laws because they eliminate virtually all commercial use of property within the city, and that they do not deny due process of law or equal protection of the laws because they prohibit use for commercial recreational facilities and permit use for nonprofit recreational facilities. The judgment must be affirmed.

The property which is the subject of this litigation was at one time a • family estate, consisting of some 90 acres of grounds on which the owners had constructed the original residence, swimming pools, guest houses, and a tennis court. The property had been converted to a commercial public picnic grounds called Adobe Creek Lodge long prior to the city’s incorporation and first zoning ordinance. It was improved with an open-air dance pavillion, barbecue pits, picnic tables and a snack bar, and occasionally weddings and other private parties were catered there. It may be concluded that the property was devoted to the uses similar to those which the trial court permitted to continue as nonconforming uses existing at the time of the adoption of the zoning ordinances (see fn. 2 above).

On January 27, 1956 the Town of Los Altos Hills was incorporated as a general law city. It is located in northwest Santa Clara County, southwesterly of the City of Palo Alto and directly west of the Town of Los Altos. The easterly portion is characterized by gently rolling hills. To the west the terrain becomes more precipitous but almost all of it is characterized by natural vegetative cover including many fine oak trees. At the time of incorporation it encompassed 5,325 acres, including on its southerly side the 90 acres owned by plaintiff’s predecessor in title. This property fronts on the north of Moody Road which runs along Adobe Creek, and which in 1959 was designated as a collector road in the general circulation plan for the city.

At the time of trial, September 29, 1970, the city’s planning director testified that the city embraced eight and one-half square miles, and had a population of approximately 6,800. It is encircled by Palo Alto on almost three sides, northeast, north and west. On the east it is contiguous with Los Altos, and there is some unincorporated area on the east and to the south. The Cities of Sunnyvale and Mountain View lie east of Los Altos, and Cupertino is accessible to the south. A map indicates that the city is served by the Foothill Expressway which forms part of its northeasterly bound

Prior to incorporation the land holding had been in relatively large parcels which had been developed as country estates. With the coming of intensive urbanization to Santa Clara County those holdings were threatened with development patterns similar to those which were taking place in other parts of the area. It was recognized that the result would have been to destroy the pleasant rural character that existed, and the town was incorporated to protect the existing residents from those threats and to preserve its rural character. Accordingly the first ordinance adopted by the city, on January 28, 1956, was an emergency zoning ordinance which prohibited the use of land for other than for the purpose of a one-family dwelling, unless another use was approved by the city council, or such, planning commission as it might establish. The ordinance likewise prohibited, without such approval, any subdivision of land into parcels having less acreage or frontage requirements than was provided under county zoning provisions in effect at the time of incorporation. The ordinance recited in part, “. . . it is . . essential that restrictions and regulation^ of an interim nature be adopted until time is had for a permanent plan to be worked out and to assure the orderly and harmonious development of the Town of Los Altos Hills, preserve its unique and distinctive character, protect the character and stability of all the area within the corporate limits of said City, assure sound, fair land use in general and otherwise to protect the public interest, health, comfort and convenience and effect the immediate preservation of the public peace, health and safety and welfare until the permanent plan is developed and an Ordinance based upon the report of the Planning Commission be prepared and adopted.”

On July 6, 1959, effective 30 days'thereafter, the city council adopted a comprehensive zoning ordinance (Ordinance No. 44), which established, regulated and restricted the use of land, the use, location and height and bulk of buildings, and the area and dimensions of building sites, and further provided for the administration and enforcement of its provisions. The purpose of the ordinance was stated as follows: “. . . This Zoning Ordinance is adopted to protect and guide the growth and expansion of the Town of Los Altos Hills in an orderly manner true to the rural residential character of the community; to provide for space deemed necessary to advance the welfare of the public in assuring adequate light, pure air, safety from conflagration and disaster; to promote the smooth flow of traffic, to provide adequate residential off-street parking facilities, and to solve other conditions arising from concentration of the population.”

This ordinance designated the entire city as a “Residential Agricultural

In 1966 in order to comply with the provisions of section 11546 of the Business and Professions Code which authorizes a governing body of a city or county to require a dedication of land, or the payment of fees for park or recreational purposes as a condition to the approval of a final subdivision map, the city caused to be prepared a recreation element of its general plan. This plan designates substantially all of the northern half of plaintiffs’ property as “Private Park.” The plan shows two possible public park sites, neither of which involves plaintiffs’ property, and it also suggests that in order to avoid maintenance and supervisory costs, park arrangements could be made with existing schools or neighboring governmental agencies.

On September 3, 1968, the city adopted comprehensive amendments to the 1961 ordinance. The purposes were expanded to tie them in with the “General Plan” and to add, among other purposes “to preserve and enhance the natural beauty of the community.” Two classes of districts were created, “(1) R-A (Residential-Agricultural) [¶] (2) OSR (Open Space Reserve).” (Note, Gov. Code, §§ 65910-65912, as added by Stats. 1970, ch. 1590, § 16, p. 3317.) According to a zoning map adopted with the ordinance, the only portion of the city included in the second category was a triangular parcel of five or ten acres adjacent to the Junípero Serra Freeway. The following primary uses are permitted in Open Space Reserve Districts: “a. Agricultural uses including horticulture and grazing, but excluding structures, [¶] b. Forest preserves, [¶] c. Other open space uses.”

The sections relating to primary uses and accessory uses, and to conditional uses were renumbered without substantial change in text.

On June 1,1970, the ordinance was amended to permit covenants as well as churches. “Convent” was defined as follows: “A residence facility for participants in a religious order or organization; provided, however, that no money or other consideration is required to be paid by the residents to the proprietor.” The number of residents was limited to 35 times the estimated maximum number of lots which would be permitted on the whole of the property devoted to the convent use.

The parcel involved was purchased by appellants Bellucci, Bellucci’s brother and the latter’s wife (see fn. 1 above) and two other persons in

The major portion of the trial was devoted to the production of evidence bearing upon the uses of the property as they existed in 1956, when the town was incorporated and the first zoning ordinance was adopted, and the uses of the property as operated by appellants from the time of their acquisition of the property up to and including the time of trial. Such latter evidence as bears upon the question of the validity of the alleged discrimination under the zoning ordinance, and other evidence bearing on related existing uses within the city is reviewed below (see part II below).

The property owners claim that a system of exclusionary zoning which eliminates all, or virtually all, commercial use of property within a particular city constitutes a denial of equal protection of the laws. The question raised has. apparently not been resolved in this state, although there are some decisions which appear to have peripheral relationship to the issue. In Reynolds v. Barrett (1938) 12 Cal.2d 244 [ 83 P.2d 29 ] the court upheld a judgment ordering the issuance of a building permit for a business structure on a parcel zoned for residential use because it was entirely surrounded by properties used for business, semi-business or public purposes (12 Cal.2d at pp. 250-252). The decision, however, rejected the theory that the zoning ordinance wás generally invalid because it created a monopoly of ownership and use in that the existing business district in the area in which the parcel lay was completely occupied, and because the city should have provided a larger area for business purposes. The court stated, “The record, without conflict, shows that Piedmont is primarily a residential city. Its charter so declares. It is entirely surrounded by the city of Oakland in which are located many business houses which maintain frequent and adequate delivery service to all parts of Piedmont. The Grand Avenue Business District created by the challenged ordinance is not fully built up. The people of the city of Piedmont have shown a determined effort to keep their city a residential city. This they have the legal right, within constitutional limits, to do. The power to declare zoning ordinances unconstitutional only should be exercised where no substantial reason exists to support the determination of the city council. If the reasonableness of the ordinance is reasonably debatable the ordinance must be upheld. [Citation.]” (I d,, at p. 249.) Whatever support the respondent city can find for

Earlier it had been determined that when the municipality creates two districts one of which is to be devoted to residential uses and the other to business uses, it has made a legislative finding that the maintenance of both such districts is necessary to the public welfare, and that it therefore is the duty of the governing body when zoning the city to make adequate provision for both such uses. (In re White (1925) 195 Cal. 516 , 520 [ 234 P. 396 ]; and see Wickham v. Becker (1929) 96 Cal.App. 443 , 446-448 [ 274 P. 397 ].) These cases explain the Reynolds’ court reference to the necessity of creating a business district. Here the general plans and zoning ordinances all indicated that a commercial district was unnecessary and unwanted.

A further suggestion of similar tenor is found in Biscay v. City of Burlingame (1932) 127 Cal.App. 213 [ 15 P.2d 784 ]. There the issue was whether a garage erected in 1928 under a building permit for a private garage, but used for a public garage business, was a permitted nonconforming use under an ordinance adopted in 1929 which zoned the property as residential. The city relied upon prior ordinances which classified the property as residential in attempting to show that the business use was illegally created. The court reviewed the earlier ordinances, and, in the course of concluding that none of them operated to make the use of the property for business or trade purposes unlawful because they were neither general nor comprehensive (127 Cal.App. at pp. 216-219), observed: “The earlier ordinances arbitrarily established a residential district without regard to business which might be necessary in that district” (id., p. 217), and “There is no indication found in the earlier ordinances of the City of Burlingame, upon which respondents are relying, that the city council, in passing those ordinances, had in mind anything other than an arbitrary setting aside of a very large part of the city for residential purposes without regard to the commercial and industrial needs of the community.” (Id., p. 218.) In this case, however, there have been clear declarations of the uses which the governing body of the city has determined should be permitted within its territorial limits.

Subsequent cases indicate that there is no necessity to provide a district

The property owners refer to the provisions of the Government Code dealing with local planning. (Tit. 7, ch. 3, § 65100 et seq.) Section 65302 provides in part, “. . . The plan shall include the following elements: [¶] (a) A land use element which designates the proposed general distribution and general location and extent of the uses of the land for housing, business, industry, open space, including agriculture, natural resources, recreation, and enjoyment of scenic beauty, education, public buildings and grounds, solid and liquid waste disposal facilities, and other categories of public and private uses of land. . . .” It is obvious that this is not a mandate to create sufficient districts so that each use named may be enjoyed within the territory embraced by any municipality. The following chapter (tit. 7, ch. 4, § 65800 et seq.) which deals with zoning regulations provides in section 65850: “Pursuant to the provisions of this chapter, the legislative body of any county or city by ordinance may [¶] (a) Regulate the use of buildings, structures and land as between industry, business, residents, open space, including agriculture, recreation, enjoyment of scenic beauty and use of natural resources, and other purposes.” Section 65851 reads, “For such purposes the legislative body may divide a county, a city, or portions thereof, into zones of the number, shape and area it deems best suited to carry out the purpose of this chapter.” (Italics added in both sections.)

In some jurisdictions it has been held that enabling state legislation of similar tenor requires the local governing body to make provision for more than one basic use of the land under its control. (See Gundersen v. Village of Bingham Farms (1964) 372 Mich. 352 , 354-357 [ 126 N.W.2d 715 , 716-717]; City of Moline Acres v. Heidbreder (Mo. 1963) 367 S.W.2d 568 , 572-575; and Suburban Ready-Mix Corp. v. Village of Wheeling (1962) 25 Ill.2d 548 , 552 [ 185 N.E.2d 665 , 667].) In the Missouri case, on which the Michigan court relied, the court observed: “The ordinary concept of ‘zoning’ is to ‘mark off into zones ... to partition ... by

Seven years after its original decision the Missouri court recanted. In McDermott v. Village of Calverton Park (Mo. 1970) 454 S.W.2d 577 , 581, the court concluded: “We have carefully re-examined Moline Acres and have concluded that it is not sound and should therefore no longer be followed.” The court determined, that the statutes did not require multiple-use zoning, and that a one-use zoning ordinance could be upheld when it did, as it did in that case, promote health, safety, morals and the general welfare. The court embraced the views found in Valley View Village v. Proffett (6th Cir. 1955) 221 F.2d 412 , 416-417 and Connor v. Township of Chanhassen (1957) 249 Minn. 205 , 212-214 [ 81 N.W.2d 789 , 795-796]. (See also Jameson v. St. Tammany Parish Police Jury (La.App. 1969) 225 So.2d 720 , 723; Town of Plainfield v. Hood (1968) 108 N.H. 502 , 506 [ 240 A.2d 60 , 64]; Duff con Concrete Products v. Borough of Cresskill (1949) 1 N.J. 509 , 512-514 [ 64 A.2d 347 , 349-350, 9 A.L.R.2d 678 , 681]; and Leary v. Adams (1933) 226 Ala. 472 , 477 [ 147 So. 391 , 395-396].) In Valley View Village v. Proffett, supra, the court found that the Ohio statute, as does the California statute, used the word “may.” It construed that word as permissive and further noted that it is generally established that the regulation by a municipality of the use within its border is within the powers .of local government, specifically its police power (221 F.2d at p. 416).

The case also sets forth reasons why an ordinance which places all the areas of a city in a residential district is not unconstitutional as a matter of law. The court stated, “Traditional concepts of zoning envision a municipality as a self-contained community with its own residential, business and industrial areas. It is obvious that Valley View, Ohio, on the periphery of a large metropolitan center, is not such a self-contained community, but only an adventitious fragment of the economic and social whole. We cannot conclude as a matter of law that an ordinance which places all of the area of such a village into a residential district is per se arbitrary and unreasonable, with no substantial relation to the public health, safety, morals or general welfare. It would appear contrary to the very purposes of municipal planning to require a village such as Valley View to designate some of its area for business or industrial purposes without regard to the public need for business or industrial uses. The council of such a village should

“Situations in which the legislative body of a municipality would even desire to put its entire area into but one use district are no doubt rare. Situations in which such an ordinance would withstand constitutional attack with respect to the impact upon particular property within the municipality are perhaps even rarer. We conclude only that, if otherwise permitted by the Constitution and statutes of the state, a one-use ordinance is not necessarily so arbitrary and unreasonable as in every case to be invalid.” (221 F.2d at p. 418. See also Cadoux v. Planning & Zoning Com’n of Town of Weston (1972) 162 Conn. 425 , 429-430 [ 294 A.2d 582 , 583-584]; Jameson v. St. Tammany Parish Police Jury (La.App.) supra, 225 So.2d 720 , 724; Town of Plainfield v. Hood, supra, 108 N.H. 502 , 506 [ 240 A.2d 60 , 64]; Rockingham Hotel Company v. North Hampton (1958) 101 N.H. 441 , 444 [ 146 A.2d 253 , 255]; Oregon City v. Hartke (1965) 240 Ore. 35 , 46-50 [ 400 P.2d 255 , 261-263]; Blank v. Town of Lake Clarke Shores (Fla.App. 1964) 161 So.2d 683 , 686; Gautier v. Town of Jupiter Island (Fla.App: 1962) 142 So.2d 321 , 323-324; Fanale v. Hasbrouck Heights (1958) 26 N.J. 320 , 325 [ 139 A.2d 749 , 752]; and Duffcon Concrete Products v. Borough of Cresskill, supra, 1 N.J., 509 , 514-515 [ 64 A.2d 347 , 350-351, 9 A.L.R.2d 678 , 682], Cf. Rockhill v. Chesterfield Township (1957) 23 N.J. 117 , 127 [ 128 A.2d 473 , 479]; Guaclides v. Borough of Englewood Cliffs (1951) 11 N.J.Super. 405 , 411 [ 78 A.2d 435 , 438]; Connor v. Township of Chanhassen, supra, 249 Minn. 205 , 212-214 [ 81 N.W.2d 789 , 795-796]; Golden v. Planning Board of Town of Ramapo (1972) 30 N.Y.2d 359 [ 334 N.Y.S.2d 138 , 285 N.E.2d 291 ] [app. dism. (1972) 409 U.S. 1003 ( 34 L.Ed.2d 294 , 93 S.Ct. 436 and 440)]; cf. Scillepi, J., at pp. 373-380 [334 N.Y.S.2d at pp. 147-153, 285 N.E.2d at pp. 298-303] with Breitel, J., dissenting at pp. 384-385 and 387-389 [334 N.Y.S.2d at pp. 157-158 and 160, 285 N.E.2d at pp. 306 and 307-308]; Fox Meadow Estates v. Culley (1931) 233 App.Div. 250 , 251-252 [ 252 N.Y.S. 178 , 179-180], affd. (1933) 261 N.Y. 506 -507 [ 185 N.E. 714 ]; cf. Nehrbas v. Incorporated Village of Lloyd Harbor (1957) 2 N.Y.2d 190 , 195 [ 159 N.Y.S.2d 145 , 140 N.E.2d 241 , 244, 61 A.L.R. 2d 965 ]; Gardner v. Leboeuf (1960) 24 Misc.2d 511 , 516 [ 204 N.Y.S.2d 468 , 472-473], affd. (1962) 15 App.Div.2d 815 [ 226 N.Y.S.2d 678 ]; Gignoux v. Village of Kings Point (1950) 199 Misc. 485 , 487-492 [ 99 N.Y.S.2d 280 , 282-286]; and Village of Old Westbury v. Foster (1948) 193 Misc. 47 , 48-49 [ 83 N.Y.S.2d 148 , 150], with Vernon Park Realty v. City of

Some jurisdictions have adopted a contrary approach. In Pennsylvania in Bryan v. City of Chester (1905) 212 Pa. 259 [ 61 A. 894 ] it was determined, before there was any statutory authority for zoning (see Norate Corporation v. Zoning Board of Adjustment (1965) 417 Pa. 397 , 406, fn. 9 [ 207 A.2d 890 , 895, fn. 9], that the power to regulate billboards was limited as follows: “ ‘. . . a secure structure, which is not an infringement upon the public safety, and is not a nuisance, cannot be made one by legislative fiat, and then prohibited. [Citations.]’ ” (212 Pa. at p. 262 [61 A. at p. 895, quoting from Crawford v. City of Topeka, 51 Kan. 756 [ 33 P. 476 ].) Sixty years later the court looked backward and concluded, “Granted that our courts now look with more liberality upon a municipality’s police power as to sign advertising than when Bryan was decided, the rationale of Bryan is apposite in determining the validity of the instant ordinance which places a blanket prohibition on all ‘off-site’ sign advertising in the entire municipality. Such an ordinance is too general, too broad and unreasonable, [¶] In our view, the instant ordinance does not attempt to regulate but to prohibit and the prohibition, without any regard for the districts set up under the Zoning Ordinance, extends throughout the Township to all ‘off-site’ sign advertising. Such ordinance is patently unreasonable and invalid.” (Norate Corporation v. Zoning Board of Adjustment, supra, 417 Pa. at p. 407 [207 A.2d at p. 895], fns. omitted. See also In re Appeal of Ammon R. Smith Auto Co. (1966) 423 Pa. 493 , 495-497 [ 223 A.2d 683 , 684-685].)

Subsequently in National Land and Investment Company v. Kohn (1965) 419 Pa. 504 [ 215 A.2d 597 ], the court struck down a zoning ordinance which purported to create a four-acre minimum building site in about 30 percent of the area of the township. The court brushed aside the legislative body’s contentions respecting pollution of water from sewage by increased density, inadequacy of township roads to accommodate more intense development, problems of fire protection, preservation of the “character” of the area through creation of a greenbelt, provision of a proper setting for historic sites and architecturally and historically interesting old homes and retention of the rural character of the area. In so doing it observed, “Zoning is a tool in the hands of governmental bodies which enables them to more effectively meet the demands of evolving and growing communities. It must not and can not be used by those officials as an instrument by which they may shirk their responsibilities. Zoning is a means by which a governmental body can plan for the future—it may not be used as

The court concluded, “Four acre zoning represents Easttown’s position that it does not desire to accommodate those who are pressing for admittance to the township unless such admittance will not create any additional burdens upon governmental functions and services. The question posed is whether the township can stand in the way of the natural forces which send our growing population into hitherto undeveloped areas in search of a comfortable place to live. We have concluded not. A zoning ordinance whose primary purpose is to prevent the entrance of newcomers in order to avoid future burdens, economic and otherwise, upon the administration of public services and facilities can not be held valid.” (Id., at p. 532 [id., at p. 612], See also Appeal of Girsk, supra, 437 Pa. at p. 242 [263 A.2d at p. 397].)

In Exton Quarries, Inc. v. Zoning Board of Adjustment (1967) 425 Pa. 43 [ 228 A.2d 169 ] the same court struck down a township-wide prohibition of quarrying, after similarly substituting its judgment of the evils to be prohibited for that of the body which adopted the zoning ordinance. The court observed, “The constitutionality of zoning ordinances which totally prohibit legitimate businesses such as quarrying from an entire community should be regarded with particular circumspection; for unlike the constitutionality of most restrictions on property rights imposed by other ordinances, the constitutionality of total prohibitions of legitimate businesses cannot be premised on the fundamental reasonableness of allocating to each type of activity a particular location in the community. We believe this is true despite the possible existence outside the municipality of sites on which the prohibited activity may be conducted, since it is more probable than not that, as the operator of the prohibited business is forced to move further from the property he owns, his economic disadvantage will increase to the point of deprivation. Moreover, if one municipality may, with only moderate justification, totally prohibit an undesired use of land, it is not unlikely that surrounding municipalities will do the same—thus increasing the distance to an alternative site and the concomitant economic disadvantage. Thus the possible availability of alternative sites somewhere out

In Appeal of Girsh, supra, four justices of a seven-man court applied the quoted principles to strike down the provisions of a zoning ordinance which failed to provide for the construction of apartments except as they might be allowed under a variance procedure. The majority observed, “Statistics indicate that people are attempting to move away from the urban core areas, relieving the grossly over-crowded conditions that exist in most of our major cities. Figures show that most jobs that are being created in urban areas, including the one here in question, are in the suburbs. New York Times, June 29, 1969, p. 39 (City Edition). Thus the suburbs, which at one time were merely ‘bedrooms’ for those who worked in the urban core, are now becoming active business areas in their own right. It follows then that formerly ‘outlying,’ somewhat rural communities, are becoming logical areas for development and population growth—in a sense, suburbs to the suburbs. With improvements in regional transportation systems, these areas also are now more accessible to the central city.

“In light of this, Nether Providence Township may not permissibly choose to only take as many people as can live in single-family housing, in effect freezing the population at near present levels. Obviously if every municipality took that view, population spread would be completely frustrated. Municipal services must be provided somewhere, and if Nether Providence is a logical place for development to take place, it should not be heard to say that it will not bear its rightful part of the burden.” (437 Pa. at pp. 244-245 [263 A.2d at pp. 398-399].) They concluded, “Apartment living is a fact of life that communities like Nether Providence must learn to accept. If Nether Providence is located so that it is a place where apartment living is in demand, it must provide for apartments in its plan for future growth; it cannot be allowed to close its doors to others seeking a ‘comfortable place to live.’ ” (Id., p. 246 [id., p. 399].)

In Town of Hobart v. Collier (1958) 3 Wis.2d 182 [ 87 N.W.2d 868 ] the opinion states: “From the evidence in this case only one conclusion may be

Under these circumstances the findings of the city council in its zoning ordinances and adopted plans and established principles of zoning sustain the exclusionary provisions of the ordinance insofar as they prohibit commercial development of recreational areas. “It is well settled that zoning ordinances, when reasonable in object and not arbitrary in operation, constitute a justifiable exercise of police power, and that the establishment, as part of a comprehensive and systematic plan, of districts devoted to strictly private residences or single family dwellings, from which are excluded business or multiple dwelling structures, is a legitimate exercise of the police power. [Citations.] . . . [¶] Every intendment is in favor of the validity of the exercise of police power, and, even though a court might differ from the determination of the legislative body, if there is a reasonable basis for the belief that the establishment of a strictly residential district has substantial relation to the public health, safety, morals or general welfare, the zoning measure will be deemed to be within the purview of the police power. [Citations.]” (Wilkins v. City of San Bernardino (1946) 29 Cal.2d 332 , at pp. 337, and 338-339 [ 175 P.2d 542 ]. See also Euclid v. Ambler Co. (1926) 272 U.S. 365 , 388-395 [ 71 L.Ed. 303 , 310-314, 47 S.Ct. 114 ]; Consolidated Rock Products Co. v. City of Los Angeles (1962) 57 Cal.2d 515 , 522-523 [ 20 Cal.Rptr. 638 , 370 P.2d 342 ], app. dism. (1962) 371 U.S. 36 [ 9 L.Ed.2d 112 , 83 S.Ct. 145 ]; Roman Cath. etc. Corp. v. City of

The conclusion that the ordinance should be sustained against attack on the grounds that it fails to contain sufficient provision for uses other than single family residential on lots of at least one acre in size, is supported by the general judicial favoritism shown to that form of living. The paeans of praise for the single family residence uttered by Mr. Justice Lennon (himself a judge from the rural suburban County of Marin), in Miller v. Board of Public Works, should be required reading for any real estate subdivision salesman. (See 195 Cal. at pp. 492-493.)

In the attacks on exclusionary zoning it is pointed out that the greatest evil is that each suburban community is providing for its own public health, safety, morals and welfare, and as a result the general welfare of the community or region as a whole suffers socially, economically and politically. Nevertheless, from all that appears in this case any general, regional or community plan might itself well have determined that the area now embraced in respondent city should have been zoned as it has been zoned, and that the use of appellants’ land for commercial recreational use should have been phased out. A city merely may have embraced zoning which was created prior to its incorporation as part of regional plans. It should not be criticized because it retained the limited uses permitted by that zoning to the exclusion of others.

It is therefore concluded that on this record the exclusive features of the city’s zoning ordinance do not render it subject to successful attack by the appellants who seek to perpetuate their commercial recreational use.

At the trial it was brought out that neither the Los Altos Hills Country Club nor its predecessor, the Adobe Creek Lodge and Country Club (see fn. 2 above) was a member-owned club, that the members acquired no proprietary interest but merely a license to use the facilities. Although an advisory board was created in 1962, it was discontinued in 1967. The club, started in late 1961, had a membership of about 250 families at the end of 1962. The membership remained at about 250 for several years. The sale of memberships has been promoted by newspaper, radio and television advertising, by telephone solicitation, and by salesmen, as many as six at one time, out selling memberships on a commission basis. About 1967 a membership director was hired, and about 800 or 1,000 memberships were sold in 1968. At the time of trial, October 1970, the club had about 800 members. Special initiation fee rates have been offered to those living at a great distance from the premises.

Testimony indicated that when the grounds were used for a company picnic, or for some widely advertised supper party, there was very heavy traffic on the roads leading to the premises. On a busy Saturday as many as 4,000 people have been on the property in various groups using different facilities of, what the operátor described as, “a complete operational recreational park” (see fns. 2 and 3 above). As many as 5,000 or 6,000 can be accommodated if the whole facility is rented.

The evidence concerning other uses within the city limits indicate that there were some parcels on which there were more than one dwelling unit. (Apparently two dwellings are permitted on parcels of 1.99 acres or more

Reference to the Fremont Hills Country Club, a private tennis and swim club, revealed that it was operating under a use permit issued in 1958 as a private nonprofit recreation club, that it had a restaurant for its members, conducted dances and social events, and maintained stables on the property. The Town Planner was unable to testify as to whether the public at large attended social events at that club or whether the facilities were ever rented out, nor could he testify as to whether the club sponsored commercial tennis tournaments or horse shows at which admissions were charged and liquor and beverages were sold to those attending.

It was established that a riding academy had been in existence for five or ten years; that it was operated as a commercial venture for profit; and that it was operating under a use permit as a private school.

Appellants seek to apply the following. rules to the classifications of use of property adopted and practiced by respondent city. In Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566 [ 79 Cal.Rptr. 77 , 456 P.2d 645 , 38 A.L.R.3d 1194 ], the court struck down .the provisions of Labor Code section 1850 which prohibited the employment of aliens on public works. The court stated: “The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. In cases involving ‘suspect classifications’ or ‘fundamental interests’ of those suffering discriminatidn, the United States Supreme Court prescribes a strict standard for reviewing the particular enactment under the equal protection clause. Not only must the classification reasonably relate to the purposes of the law, but also the state must bear the burden of establishing that the classification constitutes a necessary means of accomplishing a legitimate state interest, and that the law serves to promote a compelling state interest.” (71 Cal.2d at pp. 578-579, fns. omitted.)

The question is purely economic, and under the equal protection clauses of the state and federal Constitutions any alleged discrimination must be evaluated in accordance with the following principle: “. . . the United States Supreme Court has tended to employ a two-level test in reviewing legislative classifications under the equal protection clause. In the area of economic regulation, the high court has exercised restraint, investing legislation with a presumption of constitutionality and requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose. [Citations.]” (Westbrook v. Mihaly (1970) 2 Cal.3d 765 , 784 [ 87 Cal.Rptr. 839 , 471 P.2d 487 ] [vacated on other grounds (1971) 403 U.S. 915 ( 29 L.Ed.2d 692 , 91 S.Ct. 2224 )]. See also Serrano v. Priest (1971) 5 Cal.3d 584 , 597 [ 96 Cal.Rptr. 601 , 487 P.2d 1241 , 41 A.L.R.3d 1187 ]; and County of Riverside v. Whitlock (1972) 22 Cal.App.3d 863 , 870-876 [ 99 Cal.Rptr. 710 ].) In determining whether there has been any discrimination as claimed by appellants, the rational relationship test should be used.

Appellants rely upon Roman Cath. etc. Corp. v. City of Piedmont, supra, 45 Cal.2d 325 in which it was concluded that the ordinance involved was unconstitutional and void because of its arbitrary and unreasonable discrimination against private schools. The case does not throw light on the question of whether, a distinction may be drawn between commercially motivated private schools and nonprofit and parochial private schools. Although the opinion gives lip service to the rule quoted above from Wilkins v. City of San Bernardino (see 45 Cal.2d at p. 326), it points out “that parents, have the basic constitutional right to have their children educated in schools of their own choice, subject to reasonable regulations as to subjects required to be taught, manner of instruction, etc.” (id., at p. 329), and, “Parents have the right to send their children to private schools, rather than public ones, which are located

That there is a distinction between recreational uses for profit and recreational uses by a private membership club has been recognized in numerous decisions. In Arents v. Squires (1960) 7 N.Y.2d 1009 [ 200 N.Y.S.2d 52 , 166 N.E.2d 848 ]; and 8 N.Y.2d 863 [ 203 N.Y.S.2d 910 , 168 N.E.2d 712 ] the court affirmed a grant of a building permit to an existing use because the use was embraced in the prior permitted use of “clubhouse.” (See 8 App.Div.2d 952 [ 190 N.Y.S.2d 594 ].) A dissent, seeking to reverse to determine whether the use was “conducted for gain” as prohibited by the ordinance, observed: “There is nothing sinister in the profit motive nor in the conduct of such a venture for gain. It just did not conform to the zoning ordinance if that was the fact. The large rental, the management and operation of the club by the promoters of the enterprise who owned the equity, and the circumstance that the club facilities were open to the use of the public patronizing the inns, restaurants and boarding houses in Southampton and vicinity—all of which are alleged as facts in the petition—created a question of fact requiring a trial in court concerning whether this was a clubhouse conducted or not conducted for gain.” (7 N.Y.2d at p. 1014 [200 N.Y.S.2d at p. 55, 166 N.E.2d at p. 850]. See also Nelson v. Pierce (1953) 281 App.Div. 994 [ 120 N.Y.S.2d 804 ] and (Sup, 1952) 117 N.Y.S.2d 61 ]; and Village of East Hampton v. Mulford (1946) 188 Misc. 1037 [ 65 N.Y.S.2d 455 ].)

In Carpenter v. Zoning Bd. of Appeals of Framingham (1967) 352 Mass. 54 [ 223 N.E.2d 679 ] a commercial swimming “club” was granted a building permit under a law which permitted a “club” and a “recreational building and ground” within a residential area. The court stated, “Our basic inquiry is whether Catalina is a bona fide club with limited membership controlled by the members, into which admission cannot be obtained by any person at his pleasure, and in which the property is actually owned in common or held for the common benefit of the members, . . .” (352 Mass, at p. 56 [223 N.E.2d at p. 681].) The court

The mere fact that some uses of the property may prove to be similar does not render the ordinance unduly discriminatory. In City of Long Beach v. California Lambda etc. Fraternity (1967) 255 Cal.App.2d 789 [ 63 Cal.Rptr. 419 ], it was contended that the attributes of use as a fraternity house were identical to those of a boarding house or lodging house. The court, with an apparent low regard for the conduct of students living in a fraternity house, pointed out that many attributes of the life style in a fraternity house were absent in a permitted boarding house, lodging house or apartment. (255 Cal.App.2d at pp. 796-797.) So here there are attributes of the commercial venture which render it more offensive and burdensome to a residential neighborhood than the nonprofit club. It may also be pointed out that there was no showing here that there was discrimination in the city’s manner of enforcing the ordinance. (See id., at p. 797; and City etc. of San Francisco v. Burton (1962) 201 Cal.App.2d 749 ,755-756 [ 20 Cal.Rptr. 378 ].)

Appellants point out that even nonprofit corporations may make a profit. Corporations Code section 9200 provides in part; “. . . Carrying on business at a profit as an incident to the main purposes of the corporation and the distribution of assets to members on dissolution are not forbidden to nonprofit corporations, but no corporation formed or existing under this part shall distribute any gains, profits, or dividends to any of its members as such except upon dissolution or winding up.” (See also Laurel H. Cemetery Assn. v. San Francisco (1947) 81 Cal.App. 2d 371 , 378 [ 184 P.2d 160 ].) Cuzner v. The California Club (1909) 155 Cal. 303 [ 100 P. 868 ] upon which appellants rely demonstrates that there is a valid distinction between a social club and a commercial venture insofar as the licensing of the sale of alcoholic beverages is concerned. In any event, the mere fact that there may be a profit on dissolution does not lessen the distinction between the day-to-day opera-

Finally they assert that John Tennant Memorial Homes, Inc. v. City of Pacific Grove (1972) 27 Cal.App.3d 372 [ 103 Cal.Rptr. 215 ] demonstrates that no lawful distinction can be drawn between nonprofit and commercial activities. There the court struck down a tax which purported to tax the occupants of nonprofit rest homes, and excluded the occupants of profit-motivated rest homes. The court found that there was no rational basis for the classification, on grounds, among others, that each type of occupant received the same services from the city (27 Cal.App.3d at p. 379). The court, however, pointed out, “The instant ordinance taxes not the owners for the privilege of doing business, but the retirees for the privilege of occupancy ... an occupancy tax cannot distinguish between groups of occupants without a clear, reasonable and constitutional base.” (Id., p. 381.)

Here the ordinance under the zoning powers properly distinguishes between business uses and nonprofit uses. (See Cuzner v. The California Club, supra, 155 Cal. 303 , 310-312.) The purpose of the ordinance is not for revenue but to provide for the public health, safety, morals and general welfare of the community. As has been noted above there is a rational distinction between the' attributes of commerciál and noncommercial recreational uses, and the burdens each imposes on the municipality and the residents within the city limits. The application of the provisions of the ordinance to appellants’ property was properly adjudicated.

The judgment is affirmed.

Molinari, P. J., and Elkington, J., concurred.

The petition of all the appellants for a hearing by the Supreme Court was denied July 12, 1973.