49 Cal.2d 826, 24247, Johnston v. City of Claremont

Docket Nº:24247
Citation:49 Cal.2d 826, 323 P.2d 71
Opinion Judge:[11] Mccomb
Party Name:Johnston v. City of Claremont
Attorney:[7] Harry R. Roberts for Plaintiffs and Appellants. [8] William G. Bergman, Jr., City Attorney, Burke, Williams & Sorensen, Harry C. Williams and Royal M. Sorensen for Defendants and Appellants. [9] Harold W. Kennedy, County Counsel (Los Angeles), Edward H. Gaylord, Deputy County Counsel, Roger A...
Case Date:March 26, 1958
Court:Supreme Court of California

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49 Cal.2d 826

323 P.2d 71

PHILIP F. JOHNSTON et al., Plaintiffs and Appellants,


CITY OF CLAREMONT et al., Defendants and Appellants.

L. A. No. 24247.

Supreme Court of California

March 26, 1958

In Bank.

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Harry R. Roberts for Plaintiffs and Appellants. William G. Bergman, Jr., City Attorney, Burke, Williams &amp Sorensen, Harry C. Williams and Royal M. Sorensen for Defendants and Appellants. Harold W. Kennedy, County Counsel (Los Angeles), Edward H. Gaylord, Deputy County Counsel, Roger Arnebergh, City Attorney (Los Angeles), and Bourke Jones, Assistant City Attorney, as Amici Curiae on behalf of Defendants and Appellants



Plaintiffs and defendants appeal from a judgment in a declaratory relief action which held that an ordinance of the city of Claremont rezoning plaintiffs' property as commercial property was valid.

Plaintiffs' property is located on the southwest corner of Foothill Boulevard and Mountain Avenue in Claremont, extending 959 feet in a westerly direction along the south side of Foothill and 569 feet in a southerly direction along the west side of Mountain. Most of it is planted in citrus trees, but on the northeast corner there are a reservoir, water well, and pumping plant, which have been used for many years for commercial purposes.

The northern and western borders of plaintiffs' property constitute the boundaries between Claremont and land which is unincorporated territory of Los Angeles County.

Foothill Boulevard is a widely travelled highway. The unincorporated area on both sides of the highway for a distance of several miles has been zoned C-1 by the county, a zoning which permits commercial establishments such as retail stores, gasoline stations, and restaurants. A great deal of such land is being devoted to commercial uses. The property on the

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south side of Foothill immediately west of plaintiffs' property is being used for a trailer sales business.

Next to plaintiffs' property on the south, there is a substantial area which has been zoned R-1 (single family residence) by the city of Claremont. The eastern side of Mountain is zoned residential for several blocks north and south of Foothill. East of Mountain on Foothill there is no commercial zoning for over a block and no commercial use for about two blocks.

According to the latest estimate available at the time of trial, Claremont had a population of about 9,000. A downtown area of approximately six square blocks is zoned for C-2 (commercial) uses. In addition, a four-block strip on Foothill, principally on the southern side, has been zoned commercial since 1953. There is evidence that only a few lots are vacant in either of these commercial zones, but single family residences are located on more than two square blocks of the downtown area.

Although one real estate appraiser who had investigated the area testified that in his opinion a profit of $38,600 could be realized from subdividing plaintiffs' property for residential purposes under a plan providing for lots which would back onto Foothill, another one testified that in his opinion such a subdivision would result in a loss of $7,800.

A zoning consultant for the city of Claremont and other cities was of the opinion that the city was essentially residential in character and that there should be no more commercial use permitted on the south side of Foothill. There was also testimony to the effect that the city has zoned 50 per cent more land for commercial purposes than the size of the population would indicate is currently needed, and, in the opinion of a zoning expert, an excess commercial zoning of 25 per cent to 30 per cent is a reasonable amount for future expansion. Other testimony, however, was to the effect that there should be twice as much commercial zoning as is necessary at present.


i. In 1951 defendant city of Claremont, a sixth class city, adopted a general zoning plan, ordinance Number 441, under the general law. Plaintiffs' property was zoned for agricultural and residential use.

By the terms of the general zoning ordinance as originally adopted, a public hearing was required to be held by the

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planning commission on any request for redistricting, but none was expressly prescribed by the ordinance to be held thereafter by the city council.

ii. On May 3, 1954, plaintiffs filed a request with the city council for a change in the zoning of their property from a residential zone to a commercial zone. A public hearing was held by the planning commission, and thereafter the commission referred plaintiffs' request, without recommendation, to the city council.

iii. On June 1, 1954, without further public notice, the city council adopted ordinance No. 503, purporting by its terms to rezone a portion of plaintiffs' property from a residential to a commercial zone. A week later and without notice to plaintiffs, the city council purported to adopt an emergency measure, ordinance No. 504, reciting that the general zoning ordinance did not conform to the Government Code of the State of California and providing that ordinance No. 503 be repealed. Ordinance No. 503 was never published as required by law.

iv. On July 29, 1954, the city council, by ordinance Number 507, amended the general zoning ordinance Number 441 to require a public hearing by both the planning commission and the city council on applications for rezoning.

v. On September 21, 1954, after the effective date of ordinance No. 507, plaintiffs filed a second request for the rezoning of their boulevard frontage to a depth of 300 feet. This application was referred to the planning commission, which held a public hearing on October 19, 1954, but the commission failed to act upon the application within the 40-day period prescribed by ordinance No. 441, as amended by ordinance No. 507, resulting in an approval by operation of law of plaintiffs' application.

vi. On December 6, 1954, the city council held a public hearing upon plaintiffs' application.

vii. On December 14, 1954, defendant city adopted ordinance No. 513, the effect of which was to rezone plaintiffs' boulevard frontage property from an R-1 zone (single family residence) to a C-2 zone (commercial).

viii. Concurrently with the adoption of ordinance No. 513 rezoning plaintiffs' boulevard frontage, plaintiffs delivered to the city a grant deed conveying a 20-foot easement over the most easterly portion of their boulevard frontage for the widening of Mountain Avenue, which deed provided for the automatic defeasance of the grant should ordinance No. 513

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be repealed or suspended or otherwise not take effect according to its terms. The city council accepted this grant deed according to the terms thereof.

ix. About January 3, 1955, there were filed with the city clerk referendum petitions signed by 829 registered voters of the city, entitled "Referendum Petition Against Ordinance No. 513 Redistricting Certain Property in the City of Claremont Located at the Southwest Corner of Mountain Avenue and Foothill Boulevard From an R-1 Zone (single family residence) to a C-2 Zone (heavy commercial)."

x. Pursuant to said referendum petition, a special election was held May 3, 1955, to submit to the electors the question of whether ordinance No. 513 should be approved.

xi. On May 10, 1955, after a canvass of the returns it was determined that a majority 1 of the voters had voted against the adoption of ordinance No. 513.

xii. On August 5, 1955, plaintiffs instituted the present declaratory relief action seeking to have it held that ordinance No. 513 was valid.

xiii. After trial, the court found:

(a) That ordinance No. 513 complied in all respects with the requirements of the general zoning law of defendant city and with state law; that it was not subject to referendum under the laws of the State of California; and that as a necessary corollary plaintiffs' deed to the city was a valid and subsisting grant of an easement;

(b) That the highway conditions in front of plaintiffs' property rendered its boulevard frontage more reasonably usable and suitable for commercial purposes than for residential or agricultural purposes; that substantially all the property in the county contiguous to and for some distance east and west along Foothill Boulevard was and had been zoned for business; and that next to plaintiffs' property there were a reservoir, water well, and pumping plant which for many years had been used for commercial purposes;

(c) That ordinance No. 503 was invalid because it was not adopted in conformity with the requirements of state law then in effect; and

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(d) That the general zoning law, ordinance No. 441, as amended by ordinance No. 513, was not discriminatory as to plaintiffs.

Defendants' Appeal

Question: Is a rezoning ordinance that amends a general zoning ordinance of a city of the sixth class (general law city) subject to referendum?

Yes. The following principles are here applicable:

1. Our Constitution reserves the referendum power to the electorate, including the voters of cities without charters, with certain exceptions not applicable to the present case. (Cal. Const., art. IV, section 1. 2)

2. The power of referendum may be invoked only with respect to matters which are strictly legislative in character. (Simpson v. Hite, 36 Cal.2d 125, 129 ; Dwyer v. City Council, 200 Cal. 505, 511 ; Chase v. Kalber, 28 Cal.App. 561, 568 et seq. .)

3. A board of supervisors in granting a permit under a zoning...

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