City of Norwalk v. Auction City, Inc.

• Decision Date: 10 November 1960
• Court: California Court of Appeals Court of Appeals
• Parties: , 83 A.L.R.2d 872 CITY OF NORWALK, a political subdivision of the State of California, Plaintiff and Respondent, v. AUCTION CITY, INC., a California Corporation, Defendant and Appellant. Civ. 24424.

Page 781

8 Cal.Rptr. 781

186 Cal.App.2d 287, 83 A.L.R.2d 872

CITY OF NORWALK, a political subdivision of the State of California, Plaintiff and Respondent, v. AUCTION CITY, INC., a California Corporation, Defendant and Appellant.

Civ. 24424.

District Court of Appeal, Second District, Division 3, California.

Nov. 10, 1960.

Jerome Weber and Benjamin Held, Los Angeles, for appellant.

Ralph J. Geffen, City Atty., Norwalk, for respondent.

FORD, Justice.

The defendant appeals from a judgment by which it was 'permanently enjoined from the continuation of a race track' on certain property. The land was in a zone designated as M-2 under the zoning ordinance of the city.

Only two portions of section 501 of the ordinance are set forth in the complaint and admitted by the answer. One portion is:

'Uses Listed.

'A person shall not use any premises in Zones Q. M-2, M-3, or M-4 for any of the uses listed in this section unless a valid unrevoked special use permit for such use is required by and is in effect in accordance with the provisions of Section 503 of this Ordinance.'

The other portion, being subdivision 24 of subsection D of section 501, is:

'Race track of any kind except a race track used exclusively for contests of speed, skill, or endurance between human beings only.'

Since no special use permit was obtained by the defendant, the sole question presented on this appeal is whether the particular activity involved in this case constitutes use of the property as a race track. ¹ There is no substantial factual dispute.

Before Norwalk became an incorporated city, the zoning ordinance of the county of Los Angeles governed the use of the property. Immediately upon such incorporation in August, 1957, the language of such county ordinance was embodied in the new zoning ordinance of the city. Prior to August 2, 1946, the prohibition in the county ordinance was expressed as being only applicable to race tracks for motor vehicles and motorcycles. When the county ordinance was amended on that date so as to change the language of the prohibition to that which was later adopted by the city in subdivision 24 of subsection D of section 501 of the Norwalk ordinance, it was contemplated that a race track for the racing of horses would be erected in the county at Puente. At the time of such amendment, there was no quarter-midget vehicle racing in the county of Los Angeles.

The activity in question, which had started some time before August of 1957, is conducted on the property by a nonprofit corporation, National Junior Midget Racing Association, under a sublease with the defendant, Auction City, Inc., for a consideration of one dollar per year. The membership of the operating group is composed of families with children. Such activity consists of the driving by children of midget automobiles, propelled by two-horsepower 'lawnmower' motors, around a track onetwentieth of a mile in length for a number of laps in competition for a trophy or a ribbon which is awarded to a contestant finishing in first, second or third place. While the record is not definite as to the ages of the drivers, one witness testified that his son, then nine years old, had driven for over three years. ² The track was built by 'the fathers and sons and whoever could get out there to help.' Spectators do not pay to watch the events but are free to make monetary contributions to the association.

With respect to the actual conduct of an event, generally the competitor who is the slowest in a qualifying heat is given the pole position in the final competition. In most instances, such position enables that driver to win. But there is not as much regularity with respect to those who achieve second or third place. The children are enabled to test their skill, mechanical knowledge and sportsmanship. A witness for the appellant testified that '[w]e try to simulate racing as much as possible to keep the children interested in the project.'

The question of the construction of the ordinance is one of law. See Reid & Sibell, Inc. v. Gilmore & Edwards Co., 134 Cal.App.2d 60, 72, 285 P.2d 364; County of Monterey v. Madolora, 171 Cal.App.2d 840, 841, 341 P.2d 333. 'In construing a zoning ordinance the same rules are normally applicable as in construing statutes in general, City of Yuba City v. Cherniavsky, 117 Cal.App. 568, 571, 4 P.2d 299, and accordingly a zoning ordinance must be construed reasonably considering the objects sought to be attained and the general structure of the ordinance as a whole, Yokley Zoning Law and Practice, p. 318; Petros v. Superintendent and Inspector of Buildings, 306 Mass. 368, 28 N.Ed.2d 233, 235, 128 A.L.R. 1210.' Markey v. Danville Warehouse & Lbr., Inc., 119 Cal.App.2d 1, at page 5, 259 P.2d 19, at page 21. In the present case, the complete zoning ordinance was not offered in evidence. We are precluded from taking judicial notice of the parts thereof which are not in the record before us. Simpson v. City of Los Angeles, 40 Cal.2d 271, 277, 253 P.2d 464; Higbee v. La Salle, 145 Cal.App.2d 737, 739, 303 P.2d 65; Stamper v. City of Los Angeles, 80 Cal.App.2d 242, 245, 181 P.2d 687. Consequently, in the determination of whether the questioned use of the property falls within the prohibition as to the operation of a race track, we are not offered the aid which a study of the complete zoning ordinance might provide. Cf. County of San Mateo v. Consolidated Farms, Inc., 169 Cal.App.2d 735, 738-739, 337 P.2d 840; City of Los Angeles v. Barrett, 153 Cal.App.2d 776, 782, 315 P.2d 503; Regan v. Council of City of San Mateo, 42 Cal.App.2d 801, 806, 110 P.2d 95; see 101 C.J.S. Zoning §...