Opinion
Page __
__ Cal.App.2d __260 P.2d 811LIVINGSTON ROCK & GRAVEL CO.v.LOS ANGELES COUNTY.Civ. 19688.California Court of Appeals, Second District, Second DivisionSept. 8, 1953Rehearing Denied Sept. 25, 1953.
[260 P.2d 812] Hearing Granted Nov. 5, 1953.
[260 P.2d 813] Harold W. Kennedy, County Counsel, and Edward H. Gaylord, Deputy County Counsel, Los Angeles, for appellant.
Denio, Hart, Taubman & Simpson, Long Beach, for respondents.
McCOMB, Justice.
From a judgment in favor of plaintiffs Livingston, in an action for an injunction to restrain the County of Los Angeles, hereinafter referred to as defendant, from enforcing certain provisions of the Los Angeles County zoning ordinance which would prohibit plaintiffs from conducting their cement mixing plant in an area of Los Angeles County known as the 'Artesia Industrial District', defendant appeals.
Facts: On January 31, 1950, the Pacific Electric Corporation owned a parcel of land in Los Angeles County in a district designated as the Artesia Industrial District. Over it passed a main double track railway line with two separate spur tracks to serve the commercial and industrial plants on the adjoining land. The latter was held and used for industrial and manufacturing purposes exclusively, and was surrounded by lands being devoted to commercial, industrial and manufacturing uses. The Pacific Electric leased 20,000 square feet of their land to plaintiffs.
At such time and at all times prior to March 21, 1950, all of this land was by ordinance No. 1494 (new series), of the County of Los Angeles, zoned as being in zone M-3 (unlimited) with the provision that (except as otherwise provided in Article 4 of said ordinance, which is not here involved) any building, structure, improvement or premises might be erected, constructed, established, altered, enlarged, used, occupied or maintained thereon without restriction under the provisions of the ordinance as to use and occupancy.
Plaintiffs leased such property and erected thereon a batching plant for the loading of readymix concrete mixer trucks with concrete aggregates which use was then permissible in any M-3 zone in the County of Los Angeles. This plant was erected pursuant to building permit issued by the duly authorized building department of defendant and was completed prior to March 21, 1950. The plant cost $18,000 worth of and plaintiffs purchased $80,000 worth of mixer trucks to use with their plant. Since such date the plant and mixer trucks have been in continuous operation.
In the construction and operation of their plant, plaintiffs conformed to, complied with, and at all times now are complying with all requirements of the smog control and air pollution ordinances of Los Angeles County. In addition plaintiffs secured from the proper authority having control of smog and air pollution a permit authorizing the operation of their plant and certifying that after inspection it was found to be complying with all smog control and air pollution ordinances and requirements.
Defendant, by Urgency Ordinance adopted March 21, 1950, purported to rezone the Artesia Industrial District, theretofore in [260 P.2d 814] zone M-3 (unlimited), putting it in zone M-1 (light manufacturing).
On November 25, 1950, plaintiffs received a notice through the mail that a hearing would be held December 1, 1950, before the regional planning commission with reference to revocation of exception (Case No. 61).
The owner of the property, Pacific Electric Company, was never given any notice of this hearing.
On December 6, 1950, the regional planning commission sent plaintiffs a notice that it had revoked plaintiffs' right to operate their plant. Plaintiffs exhausted their administrative remedies before instituting the present action.
In addition to the foregoing facts the trial court found that plaintiffs by erecting and operating their plant had 'acquired property rights which are entitled to protection against unconstitutional encroachments which will have the effect of depriving them of property without due process of law,' and that defendant claims that by reason of the purported action of its regional planning commission, plaintiffs will lose all right to operate their plant and will be guilty of a criminal act if they continue operation.
This appeal is upon the judgment roll alone. Therefore our review is confined to a determination of whether (a) the complaint states a cause of action; (b) the findings are within the issue; (c) the judgment is supported by the findings and (d) whether reversible error appears upon the face of the record. (Hunt v. Plavsa, (hearing denied by the Supreme Court), 103 Cal.App.2d 222, 224[2], 229 P.2d 482.)
The fact that in the notice to the clerk to prepare a record, defendant requested in addition to the judgment roll, that there be included 'that certain document entitled 'Return and Supplemental Return to Writ of Review and Affidavit' filed on August 4, 1952,' does not change the character of the appeal. It still remains an appeal upon the judgment roll alone.
In view of this rule, we are further limited under the circumstances of this case to be a determination of whether reversible error appears upon the face of the record.
The determination of the problem depends upon this question:
Were sections 533 and 649 of the county zoning ordinance, so far as applicable to plaintiffs, unconstitutional and was the order of the regional planning commission thus void?
This question must be answered in the affirmative. The following are provisions of the urgency ordinance adopted March 21, 1950 by defendant purporting to change th Artesia Industrial District from zone M-3 to zone M-1:
'Section 531. Existing Uses.
'An exception is granted automatically, hereby, so as to permit the continuation of the particular existing uses of any building, structure, improvement or premises existing in the respective zones immediately [260 P.2d 815] prior to the time this ordinance or any amendment thereof becomes effective if such existing use was not in violation of this or any other ordinance or law. * * *
'Such exception shall remain in force and effect for the following length of time, except that it may be extended or revoked as provided in this article;
'(a) Where the property is unimproved, one year.
'(b) Where the property is unimproved except for structures to replace which said Ordinance No. 2225 does not require a building permit, three years.
'(c) In other cases twenty years, and for such longer time so that the total life of the improvement from date of construction will be:
* * *
* * *
'Section 533. Revocation of Automatic Exception.
'In addition to other grounds stated in Article 2 of Chapter 6, an exception which has been automatically granted may be revoked if the Commission finds:
'(a) That the condition of the improvements, if any, on the property are such that to require the property to be used only for those uses permitted in the zone where it is located would not impair the constitutional rights of any person.
'(b) That the nature of the improvements are such that they can be altered so as to be used in conformity with the uses permitted in the zone in which such property is located without impairing the constitutional rights of any person.
'Section 649. Revocation.
'After a public hearing as provided for in this Article, the Commission may revoke or modify any permit, exception or other approval which has been granted either automatically or by special action of either the Board of Supervisors or the Commission, pursuant to either the provisions of this ordinance or of any ordinance superseded by this ordinance on any one or more of the following grounds:
* * *
* * *
'(e) Except in the case of a dedicated cemetery, that the use for which the approval was granted is so exercised as to be detrimental to the public health or safety, or so as to be a nuisance.'
The 5th amendment to the Constitution of the United States reads in part: 'No person shall be * * * deprived of * * * property, without due process of law'.
The 14th amendment to the Constitution of the United States is to the same effect, and a similar provision appears in the Constitution of the State of California as Article 1, § 13.
The foregoing constitutional provisions protect plaintiffs in their vested property rights to conduct their lawful business in which they had engaged prior to the time the property on which their plant is located was placed in an M-1 zone. This rule has been established by our Supreme Court under similar circumstances in various cases. In County of San Diego v. McClurken, 37 Cal.2d 683, 691[9], 234 P.2d 972, our Supreme Court held that an owner of real property who had legally undertaken construction of a building thereon before the effective date of a zoning ordinance might complete the building and use it for the purposes designated, which were legal at the date of the commencement of the building, after the effective date of the zoning ordinance restricting its uses to purposes other than that for which it had been originally intended.
A similar rule was stated in Jones v. City of Los Angeles, 211 Cal. 304, 309[7], 295 P. 14, 17, in the following language: 'In other words, does the broad view of the police power which justifies the taking away of theright to engage in such businesses in certain territory, also justify thedestruction of existing businesses? We do not think that it does.' And again 211 Cal. at page 321, 295 P. at page 22, "It has also been held that any regulation which deprives any person of the profitable use of his property constitutes a taking of property and entitles him under the Constitution to compensation, unless the invasion [260 P.2d 816] of rights is so slight as to permit the regulation to be justified under the police power. * * *"
In Edmonds v. County of Los Angeles, 40 Cal.2d 642, 255 P.2d 772, 777, our Supreme Court said: 'The rights of users of property as those rights existed at the time of the adoption of a zoning ordinance are well recognized and have always been protected. (Yokley, Zoning Law and Practice, § 132, p. 255.) Accordingly, a provision which exempts existing nonconforming uses is ordinarily included in zoning ordinances because of the hardship and doubtful constitutionality of compelling the immediate discontinuance of non-conforming uses. (County of San Diego v. McClurken, 37 Cal.2d 683, 686, 234 P.2d 972.)'
Similarly, in Wilkins v. City of San Bernardino, 29 Cal.2d 332, 340, 175 P.2d 542, 548, Chief Justice Gibson, speaking for the court, says 'An examination of the California decisions discloses that the cases in which zoning ordinances have been held invalid and unreasonable as applied to particular property fall roughly into four categories: 1. Where the zoning ordinance attempts to exclude and prohibit existing and established uses or businesser that are not nuisances (citing cases). 2. Where the restrictions create a monopoly (citing cases). 3. Where the use of adjacent property renders the land entirely unsuited to or unusable for the only purpose permitted by the ordinance (citing cases). 4. where a small parcel is restricted and given less rights than the surrounding property, as where a lot in the center of a business or commercial district is limited to use for residential purposes, thereby creating an 'island' in the middle of a larger area devoted to other uses (citing cases).'
In the present case it was expressly admitted by defendant in its answer that it did not claim it had instituted any proceedings to abate a public nuisance as provided by section 3491 of the Civil Code.
There is, of course, no merit in defendant's contention that plaintiffs were not being deprived of their property without just compensation, but that an automatic exception to the ordinance was merely being revoked. Such argument overlooks the basic facts in this case and says in effect that a rose by another name is not in fact a rose. In other words defendant may not do indirectly that which it could not do directly. Constitutional guaranties and rights may not be thus frittered away through specious reasoning.
Mr. Justice Holmes, of the Supreme Court of the United States, in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, at page 416, 43 S.Ct. 158, at page 160 (67 L.Ed. 322) very aptly states, '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.'
Applying the foregoing constitutional provisions in the light of the rules anounced by the Supreme Court of California in the cases set forth above, it is evidence that the provisions of the ordinances as applied to the facts in this case were unconstitutional so far as plaintiffs' plant was concerned, and of course, that the order of the regional planning commission was void. It is apparent that at the time plaintiffs erected their plant, made their investment in equipping it, and commenced to use it, its operation was perfectly legal, which fact was recognized in the urgency ordinance of defendant. It is likewise obvious that plaintiffs had a vested property right in the operation of their plant of which they could not be constitutionally deprived without due process of law, which presupposes plaintiffs' being awarded a fair and reasonable compensation for the property rights of which defendant was attempting to deprive them.
In view of such conclusions it is unnecessary to discuss other points presented by counsel in their respective briefs for the reason that irrespective of the solutions the judgment, for the reasons set forth above, must be affirmed.
Affirmed.
MOORE, P. J., and FOX, J., concur.
Mr. Presiding Justice White in Hunt v. Plavsa (hearing denied by the Supreme Court), 103 Cal.App.2d 222, 224(1), 229 P.2d 482, 483, thus accurately states the rule:
'The present appeal is here upon the judgment roll. And as is said in Kompf v. Morrison, 73 Cal.App.2d 284, 286, 166 P.2d 350, 352. 'It is elementary and fundamental that on a clerk's transcript appeal the appellate court must conclusively presume that the evidence is ample to sustain the findings, and that the only questions presented are as to the sufficiency of the pleadings and whether the findings support the judgment.' In this type of appeal, since 'the evidence is not before this court, we are confined to a determination of the questions as to whether the complaint states a cause of action; whether the findings are within the issues; whether the judgment is supported by the findings and whether reversible error appears upon the face of the record.' (Montaldo v. Hires Bottling Co., 59 Cal.App.2d 642, 646, 139 P.2d 666, 668.) Appellants cannot, by designating for inclusion in the clerk's transcript documents not properly a part of the judgment roll, or by requesting that the exhibits received in evidence be transmitted to the appellate court, enlarge the scope of the appellate court's review. (In re Estate of Larson, 92 Cal.App.2d 267, 268, 269, 206 P.2d 852.)'