Bohannan v. City of San Diego
| Citation | 106 Cal.Rptr. 333,30 Cal.App.3d 416 |
| Court | California Court of Appeals |
| Decision Date | 02 February 1973 |
| Parties | W. J. BOHANNAN, Plaintiff and Appellant, v. The CITY OF SAN DIEGO et al., Defendants and Responents. Civ. 11322. |
*
Plaintiff appeals from a judgment in a declaratory relief action rejecting his claim a zoning ordinance is invalid.
On June 30, 1971, the City Council of San Diego adopted Ordinance No. 10608 (new series) entitled 'Old San Diego Planning District', referred to hereinafter as 'the Ordinance,' which repealed and, in effect, re-enacted Ordinance No. 9511 (new series) described as 'Old San Diego Architectural Control District Ordinance', adopted September 27, 1966. Both ordinances, in substance, are zoning ordinances regulating the architectural design of buildings and signs within public view in an area surrounding a state park known as 'Old Town'. The zoned area, as well as the state park, is the site of the original settlement in San Diego; is of historical significance as the birth place of California; and is the locale of many structures built before 1871.
The purpose of the ordinance is to preserve and enhance the cultural and historical aspects of Old Town for the benefit of the general public. To effect this purpose the ordinance specifies boundaries of an architecturally controlled district; creates an architectural control board; requires approval by the board of an application for a permit to construct any new building, to alter, improve or repair such, or to use commercial signs and signboards in the area; prescribes the general standards governing issuance of permits under which the buildings and signs licensed would conform in appearance to those built and used in the area prior to 1871, citing as examples designated historical buildings in the area; provides for a review of the decisions of the board by the city council; does not require any change of existing buildings; but does require all signs to conform and directs removal of those not conforming on the expiration of three years from the effective date of the ordinance.
Plaintiff owns and operates a retail business in the zoned area; brings this class action on behalf of himself and others similarly affected; and contends 1 the ordinance is unconstitutional in that it violates equal protection, due process, and free speech concepts and is not a valid exercise of the police power because (1) the area of the control district is larger than reasonably necessary to protect and preserve the historical and cultural value of Old Town; (2) the ordinance provides for the taking of private property without compensation; (3) the provisions regulating signs create an arbitrary and unreasonable classification; (4) the authority vested in the architectural control board constitutes an inval- id delegation of legislative power to an administrative body; and (5) the amortization period for existing signs is unreasonable.
Plaintiff's contention the control district, allegedly consisting of 230 acres, is larger than reasonably necessary to protect the historical sites in Old Town, is premised on the claim the authority to protect them is derived from Government Code section 37361 which limits control measures in the area to neighboring private property, and upon the further claim many of the buildings affected by the ordinance are not 'neighboring' to any historical site. Government Code section 37361 authorizes the city council to provide for Places, buildings and structures having a special historical aesthetic interest or value and to provide 'special conditions or regulations for their protection, enhancement, perpetuation or use, which may include appropriate and reasonable control of the use or appearance of neighboring private property within public view, or both.'
Plaintiff's claim the control district consists of 230 acres is premised on a map which includes the area within the state park. This area is excluded from the district. There are i6 recognized historical sites within the district. Whether other property in the district is 'neighboring property' within the meaning of Government Code section 37361 is a question of fact determinable in light of their location and the purpose of the ordinance. 'Neighboring property' is property in the neighborhood. The neighborhood includes the general area nearby, and is not confined to adjoining property. The boundaries of the district are within the boundaries of 'Old Town' as delineated on an 1870 map entitled 'Plan of San Diego.' Old Town is the neighborhood; is not just a number of separate historical sites, but the general area within which those sites are located; and is the area which as a whole is of historical significance, exemplified by the architecture of the buildings on particular sites within it.
The city council is authorized to determine the boundaries of the area subject to control, and the court should not interfere with its determination absent a clear showing of abuse of its authority. (Gen. see Consolidated Rock Products Co. v. City of Los Angeles, 57 Cal.2d 515, 532--533, 20 Cal.Rptr. 638, 370 P.2d 342; Wilkins v. City of San Bernardino, 29 Cal.2d 332, 339, 175 P.2d 542; Miller v. Board of Public Works, 195 Cal. 477, 495, 234 P. 381.) The implied finding of the trial court there is no showing of abuse, is supported by the record. 2
As presented in his brief on appeal plaintiff's attack upon the size of the control district encompasses an attack upon the purpose of the ordinance as a valid exercise of the police power; relies upon principles pertinent in determining the validity of zoning laws; and claims the purpose of the ordinance is aesthetic which is not a proper objective of the police power, citing Varney & Green v. Williams, 155 Cal. 318, 320, 100 P. 867 and similar cases.
The police power extends to measures designed to promote the public convenience and the general prosperity (Max Factor & Co. v. Kunsman, 5 Cal.2d 446, 460, 55 P.2d 177; see also Miller v. Board of Public Works, Supra, 195 Cal. 477, 485, 234 P. 381).
The trial court found the 'purpose of the ordinance as shown by the evidence falls within the meaning of 'general welfare' of the public.' This finding is supported by the record. Preservation of the image of Old Town as it existed prior to 1871, as reflected in the historical buildings in the area, as a visual story of the beginning of San Diego and as an educational exhibit of the birth place of California, contributes to the general welfare; gives the general public attendant educational and cultural advantages; and by its encouragement of tourism is of general economic value. The purpose of the ordinance clearly is within an exercise of the police power under the principles stated and applied in Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 83, 66 S.Ct. 850, 90 L.Ed. 1096; Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940; Consolidated Rock Products Co. v. City of Los Angeles, Supra, 57 Cal.2d 515, 522, 20 Cal.Rptr. 638, 370 P.2d 342; Lockard v. City of Los Angeles, 33 Cal.2d 453, 460, 462, 202 P.2d 38; Miller v. Board of Public Works, Supra, 195 Cal. 477, 484, 234 P. 381, et seq.; Desert Outdoor Advertising, Inc. v. County of San Bernardino, 255 Cal.App.2d 765, 768--770, 63 Cal.Rptr. 543; County of Santa Barbara v. Purcell, Inc., 251 Cal.App.2d 169, 173, 59 Cal.Rptr. 345 and Metromedia, Inc. v. City of Pasadena, 261 Cal.App.2d 270, 273, 30 Cal.Rptr. 731.
Plaintiff's contention the ordinance provides for the taking of property without compensation in violation of the Constitution is directed to the effect of the provision allegedly requiring the use of materials and architectural styles in remodeling or repairing existing structures 'as were used and existed prior to 1871'; 3 and those prescribing the size, location and content of signs.
As to buildings in the area plaintiff contends the practical effect of the ordinance is to render them valueless or substantially reduce their value without compensation. The ordinance does not require the use of such materials and styles 'as were used and existed prior to 1871'. Instead, it prescribes the use of materials and styles 'in general accord with the appearance of the structures built in Old San Diego prior to 1871.' There is no showing compliance with the provision imposing style requirements upon remodeling or repairing existing buildings in practical effect would render them valueless or substantially less valuable.
As to signs in the area plaintiff makes a similar contention, claiming regulation of their size, location, content and composition deprives their owners of the right to advertise. It is obvious the provision in question does not deprive property owners in the area of the right to use signs; instead, it regulates and restricts that use for the purpose of preserving the historical atmosphere of the area which, for the reasons heretofore stated, is a proper exercise of the police power.
Regulations regarding and restrictions upon the use of property in an...
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