Tuesday, August 25, 2009

Pigs In My Parlor Instead Of Their Own Barnyard

While looking into the City of Manteca's zoning code last year, my research branched out to include some case law on the subject. Early on, the 1926 U.S. Supreme Court decision in the case of Euclid v. Ambler came up because of its most famous phrase, "a pig in the parlor." In addition to the memorable writing, this often-quoted decision is the mother ship of all precedents relating to the legality of zoning ordinances in the newly developing suburbs of a rapidly developing America. Little did I know that I would be relying on this case in such a fashion a year later.

Here are some excerpts from that decision:
- - - - - - - - - - - - - - - - - -

272 U.S. 365


Reargued Oct. 12, 1926.

Decided Nov. 22, 1926.

"Building zone laws are of modern origin. They began in this country about 25 years ago. Until recent years, urban life was comparatively simple; but, with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in (272 U.S. 365, 387) urban communities.

"The [zoning] ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It [the line] varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities.

"In solving doubts, the maxim 'sic utere tuo ut alienum non laedas,' [so use your own as not to injure another's property] which lies at the foundation of so much of the common law of nuisances, ordinarily will furnish a fairly helpful clew. And the law of nuisances, likewise, may be consulted, not for the purpose of controlling, but for the helpful aid of its analogies in the process of ascertaining (272 U.S. 365, 388) the scope of the [zoning] power.

"Thus the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality. (Sturgis v. Bridgeman, L. R. 11 Ch. 852, 865.)

"A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard."

- - - - - - - - - - - - - - - - -

It is highly instructive that the 6-3 majority of the Court, in the opinion delivered by Mr. Justice Sutherland, used nuisance law as a foundation argument upholding the establishment of zoning ordinances. The Court also quoted from the Supreme Court of Illinois, in City of Aurora v. Burns, supra, pages 93-95 (149 N. E. 788):

"The establishment of such districts or zones may, among other things, prevent congestion of population, secure quiet residence districts, expedite local transportation, and facilitate the suppression of disorder, the extinguishment of fires, and the enforcement of traffic and sanitary regulations."

And, quoting from the Supreme Court of Louisiana, in State v. City of New Orleans, supra, pages 282, 283 (97 So. 444):

"Aside from considerations of economic administration, in the matter of police and fire protection, street paving, etc., any business establishment is likely to be a genuine nuisance in a neighborhood of residences. Places of business are noisy; they are apt to be disturbing at night; some of them are malodorous; some are unsightly; some are apt to breed rats, mice, roaches, flies, ants, etc."

An assumption is made in all of the Court's analysis that the businesses referred to were legal businesses and operating legally in all other respects. If such businesses were operating on their properties prior to the adoption of a zoning ordinance, they would be "grandfathered" and allowed to continue operating indefinitely, with restrictions on changing the business or expanding it.

These are the areas where Allen & Brassey and TLC Catering depart from the law of the land; and from California's Business and Professions Code; and from Manteca's zoning ordinance, which Manteca will not enforce. In addition, they are the poster children for noisy, disturbing nuisances, precisely BECAUSE they are in the wrong place.

Remember, the pig was a "right" thing; TLC Catering is a "wrong" thing AND in the wrong place.

No comments: