This 1925 opinion of the California Supreme Court was difficult to track down but well worth the effort and expense. The logic developed here regarding comprehensive zoning ordinances as an extension of "police powers" is cited by the US Supreme Court in their 1926 landmark decision regarding
VILLAGE OF EUCLID, OHIO v. AMBLER REALTY CO. (the Pigs in the Parlor decision.)
Here, Mr. Miller tried to force L.A. to issue him building permits before the zoning plan was done so he could claim legal nonconforming status for his four-plex in what was to be a single family district.
Excerpts follow:
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GEORGE LEE MILLER et al., Appellants, v. BOARD OF PUBLIC WORKS OF THE CITY OF LOS ANGELES et al., Respondents
L. A. No. 8012
Supreme Court of California
195 Cal. 477; 234 P. 381; 1925 Cal. LEXIS 386; 38 A.L.R. 1479
February 27, 1925
SYLLABUS
The facts are stated in the opinion of the court.
JUDGES: In Bank. Lennon, J. Lawlor, J., Waste, J., Seawell, J., Richards, J., Shenk, J., and Myers, C. J., concurred.
OPINION BY: LENNON
This proceeding in mandamus was instituted in the superior court of the county of Los Angeles to compel the respondents, the Board of Public Works of the City of Los Angeles, to issue to plaintiffs a permit to erect a four-family flat dwelling on a tract of land located on West Adams Street in said city. At the time the plaintiffs first made application to the board for a building permit an existing zoning ordinance of said city did not prohibit the erection of four-family flat dwellings in residence district No. 20, wherein plaintiffs' lot was located. A permit for the erection of such building was therefore issued. Shortly thereafter, the permit was canceled and revoked by said board for the reason that the city council of Los Angeles was contemplating a comprehensive zoning plan, covering the entire city and that as a part of that comprehensive zoning scheme, and in keeping therewith, an ordinance would be enacted prohibiting the erection or construction of four-family flats in that part of the city wherein the plaintiffs' property was located. On September 1, 1921, this action was instituted by the filing of a complaint to compel the issuance of a permit. On September 6, the city council of Los Angeles passed an emergency ordinance, No. 42510 (N. S.), which declared it to be unlawful "for any person, firm or corporation to erect, or construct, alter or maintain, or cause or permit to be erected, constructed, altered or maintained within the residence zone hereby created, any building or premises which shall be used for, or designed or intended to be used for housing more than two families together with its usual accessories."
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The sole question presented is whether or not the ordinance in controversy is a rightful exercise of the police power conferred upon municipalities.
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(3) In short, the police power, as such, is not confined within the narrow circumspection of precedents, resting upon past conditions which do not cover and control present-day conditions obviously calling for revised regulations to promote the health, safety, morals, or general welfare of the public. That is to say,
as a commonwealth develops politically, economically, and socially, the police power likewise develops, within reason, to meet the changed and changing conditions.
(4) In its inception the police power was closely concerned with the preservation of the public peace, safety, morals, and health without specific regard for "the general welfare." ... (5) Thus it is apparent that
the police power is not a circumscribed prerogative, but is elastic and, in keeping with the growth of knowledge and the belief in the popular mind of the need for its application,
capable of expansion to meet existing conditions of modern life and thereby keep pace with the social, economic, moral, and intellectual evolution of the human race. In brief, "there is nothing known to the law that keeps more in step with human progress than does the exercise of this power." ( Streich v. Board of Education, supra).
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There can be no question but that there is a prevailing and preponderating sentiment in favor of necessary and reasonable zoning. The growth of this sentiment has been rapid and widespread. The first comprehensive zoning ordinance was that of New York City enacted in 1916. ...
"[Z]oning regulations" are divided into two classes: 1. Those which regulate the height or bulk of buildings within certain designated districts, -- in other words, those regulations which have to do with structural and architectural designs of the buildings, -- and (2)
those which prescribe the use to which buildings within certain designated districts may be put. Both modes of regulation have received the sanction of the supreme court of the United States. ... [I]t was held that by the exercise of the police power certain occupations could be restricted to certain defined portions of a city.
It is conceded, as indeed it must be, by the opponents of the ordinance in controversy here that
it is within the police power, by zoning, to banish nuisances and "near-nuisances" from certain districts. It is disputed, however, that the police power may be extended by any zoning ordinance, comprehensive or otherwise, to the regulation and isolation of vocations, business enterprises, and residential uses which are not intrinsically obnoxious. (10) A perusal of the decisions in California, which have upheld the prohibition and segregation of certain businesses by means of zoning, indicates that the court has not limited the power to zone to nuisances per se, and has held that
certain business establishments, harmless in themselves, may become "near-nuisances" because of the character of the neighborhood in which they are operating. ... [A]ny zoning regulation is a valid exercise of the police power which is necessary to subserve the ends for which the police power exists, namely, the promotion of the public health, safety, morals, and general welfare. It will thus be seen that the police power as evidenced in zoning ordinances has a much wider scope than the mere suppression of the offensive uses of property, and that it acts not only negatively but constructively and affirmatively for the promotion of the public welfare.
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Much is said about the constitutional guaranties attaching to the ownership of property in the individual. In this behalf it will be noted that:
(11) "It is thoroughly established in this country that the rights preserved to the individual by these constitutional provisions are held in subordination to the rights of society.
Although one owns property, he may not do with it as he pleases any more than he may act in accordance with his personal desires. As the interest of society justifies restraints upon individual conduct, so, also, does it justify restraints upon the use to which property may be devoted. It was not intended by these constitutional provisions to so far protect the individual in the use of his property as to enable him to use it to the detriment of society. By thus protecting individual rights, society did not part with the power to protect itself or to promote its general well-being.
Where the interest of the individual conflicts with the interest of society, such individual interest is subordinated to the general welfare. If in the prosecution of governmental functions it becomes necessary to take private property compensation must be made. But incidental damages to property resulting from governmental activities, or laws passed in the promotion of the public welfare are not considered a taking of the property for which compensation must be made."
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[T]he adoption and enforcement of such a plan, when fairly conceived and equably applied, is well within the scope of the police power. The increase of our urban population makes regulation necessary. As the congestion of our cities increases, likewise do the problems of traffic control and police, fire, and health protection. Comprehensive and systematic zoning aids is the successful solution of these problems and obviously tends thereby to affirmatively promote the public welfare.
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It cannot be gainsaid, however, that many municipalities, evidently upon the theory that zoning is a panacea for civic ills, have, under the guise of zoning, sought to enact and enforce unreasonable and discriminatory ordinances. Some of these attempted regulations have been palpably for the exclusive and preferential benefit of particular localities. (14) The duty, therefore, devolves upon the courts to determine in each instance whether or not the ordinance, either in whole or in part, is invalid. In the determination of this problem two questions present themselves: (1) Is the scheme of zoning as a whole sound, that is to say, is the method of classification and districting reasonably necessary to the public health, safety, morals, or general welfare? And (2) Has the scheme of classification and districting been applied fairly and impartially in each instance?
In the instant case it is conceded that the district in question is strictly residential and that if strictly residential districts may be established, plaintiffs have no cause of complaint.
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In Ex parte Hadacheck, supra, the court held in effect that, when the necessity or propriety of an enactment was a question upon which reasonable minds might differ, the propriety and necessity of such enactment was a matter of legislative determination.
That there are reasonable minds which are of the belief that a regulation creating and establishing strictly residential districts is necessary and proper is evidenced by the passage of such ordinances in such widely varying parts of the Union as Massachusetts, Louisiana, New York, Kansas, Iowa, and Wisconsin. In each of these states the problem of the validity of the establishment of a strictly residential district was before the highest court of those respective jurisdictions and in each case such ordinance was held to be within the scope of the police power.
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The case of State ex rel. Morris v. Osborn, 22 Ohio N. P. (N. S.) 549, presents the precise point in controversy here and hence is particularly pertinent. While the decision is not one of a court of last resort, nevertheless we are in accord with the reasoning of the court in refusing a writ of mandamus sought by the petitioner to compel the building inspector to issue him a permit to erect certain apartment houses in a neighborhood zoned as an exclusive single and double family residence property district.
There are some decisions which do not uphold the validity of a zoning ordinance establishing strictly residential districts. We are of the opinion, however, that the better reasoned cases are in favor of the validity of comprehensive zoning which establish strictly private home districts, and that the most which can be said of the cases to the contrary is that they merely show that this is a question upon which reasonable minds may differ.
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[J]ustification for residential zoning may, in the last analysis, be rested upon the protection of the civic and social values of the American home. The establishment of such districts is for the general welfare because it tends to promote and perpetuate the American home.
It is axiomatic that the welfare, and indeed the very existence of a nation depends upon the character and caliber of its citizenry.
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The entrance of one apartment house or flat [or illegal catering truck business] into a district usually means the entrance of others, and while it may mean an enhancement of value of the adjacent property for the building of similar structures,
it detracts from the value of neighboring property for home building.
The man who is seeking to establish a permanent home would not deliberately choose to build next to an apartment house [or illegal catering truck business], and it is common experience that the man who has already built is dissatisfied with his home location and desires a change. In other words, the apartment house, tenement, flat, and like structures [and businesses] tend to the exclusion of homes. The home owner may move to another district but this may not be a sufficient solution to his problem, for
if no protection can be given to strictly home districts -- such as is contemplated by a comprehensive and properly constructed zoning plan -- he may be forced by the ever-increasing encroachment of apartments and flats to relinquish, if not altogether abandon, the benefits emanating from a permanent home site.
Of course, the establishment of exclusive residence districts does not mean that all members of a community will perforce be compelled to live in individual homes. It simply means that by a comprehensive zoning plan
such [legal catering truck business] uses will be segregated to districts best suited to their development with benefit to their own locality and without detriment to the strictly home districts.
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Somewhere the line of demarcation must be drawn, and it is primarily the province of the municipal body to which the zoning function is committed to draw that line of demarcation... [W]e are not permitted to substitute our judgment for the legislative judgment.
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(21) It is a matter of common knowledge that a zoning plan of the extent contemplated in the instant case cannot be made in a day. Therefore, we may take judicial notice of the fact that it will take much time to work out the details of such a plan and that obviously it would be destructive of the plan if, during the period of its incubation, parties seeking to evade the operation thereof should be permitted to enter upon a course of construction which might progress so far as to defeat in whole or in part the ultimate execution of the plan.
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[I]t must be held that the ordinance in question is a valid exercise of the police power.
The judgment is affirmed.
