Hamer v. Town of Ross

• Decision Date: 13 June 1963
• Citation: 382 P.2d 375,59 Cal.2d 776,31 Cal.Rptr. 335
• Parties: , 382 P.2d 375 Margaret E. HAMER, Plaintiff and Respondent, v. TOWN OF ROSS, Defendant and Appellant. S. F. 20667.
• Court: California Supreme Court

Page 335

31 Cal.Rptr. 335

59 Cal.2d 776, 382 P.2d 375

Margaret E. HAMER, Plaintiff and Respondent, v. TOWN OF ROSS, Defendant and Appellant.

S. F. 20667.

Supreme Court of California, In Bank.

June 13, 1963.

Robert W. Elliott, City Atty. Sturgis, Den-Dulk, Douglass & Anderson and Robert T. Anderson, Oakland, for defendant and appellant.

Kennedy, Bloom & Fletcher, Leonard J. Bloom and James M. Fletcher, San Rafael, for plaintiff and respondent.

TOBRINER, Justice.

While zoning ordinances which impose a one-acre lot restriction cannot properly apply to property which is virtually surrounded by parcels of lesser size, they may, conversely, restrict the use of the property to a single-family dwelling because that usage is the predominant characteristic of the property in the general area. Applying the accepted test that we will uphold such a regulation if its reasonableness is fairly debatable, we sustain the single-family restriction. We further hold that the ordinances may severably be enforced as to the single-family restriction although not as to the one-acre requirement. We proceed to set forth our reasons for these conclusions.

The case involves an appeal by the Town of Ross from a judgment declaring void the application of its zoning ordinances in imposing upon plaintiff's property a restriction to a single-family dwelling upon a one-acre lot and in ordering the issuance of a building permit for the construction of multiple dwelling garden apartments on the property.

The essential physical facts are undisputed. Plaintiff owns an irregularly shaped 2.2 acre parcel of land in Ross which she purchased in 1938. The eastern boundary of plaintiff's property fronts one of the main arterial highways of Marin County, Sir Francis Drake Boulevard, a two-lane thoroughfare which runs north and south. The southern half of plaintiff's frontage faces the parking lot and utility service area of Ross General Hospital, which has been constructed on the other side of Sir Francis Drake Boulevard. The main portion of the hospital had been completed before plaintiff's purchase of her property; subsequently the hospital added the parking area and utility service facility.

Immediately to the north of the hospital, and on the other side of the highway from plaintiff's property, there stands a two-family dwelling. North of this dwelling a series of single-family homes has been built upon lots substantially smaller than one acre; the majority of these lots contain approximately 10,000 to 20,000 square feet. Several of these single- family homes face the plaintiff's property across the boulevard; the others are further to the north.

On the same side of the boulevard as plaintiff's property a remodeled structure, which the trial court found 'appears to be designed for duplex use,' lies to the immediate north. Beyond this structure several one-family residences occupy lots which are approximately 10,000 to 15,000 square feet, similar to those on the opposite side of the boulevard.

An abandoned railroad right-of-way, which is an unimproved and unused strip of land approximately sixty feet in width, marks the rear or westerly boundary of plaintiff's property. Beyond the right-of-way lie the backyards of an older residential district, consisting of small single-family dwellings on 7,500 square foot lots. To the north of this residential district and also across the right-of-way rises the rear elevation of the Ross business district. This district includes a non-conforming apartment building which is approximately 250 feet from the northwest corner of plaintiff's property.

The boundary between Ross and the unincorporated community of Kentfield constitutes the southern border of plaintiff's property. Immediately adjoining her Ross property plaintiff owns real estate in Kentfield, upon which she has erected an apartment building. The land in Kentfield along Sir Francis Drake Boulevard has been zoned by the County of Marin for multiple-family use.

The Corte Madera creek traverses plaintiff's property. The creek bed is within a few feet of the boulevard at the northern end of plaintiff's frontage and approximately 150 feet from the boulevard at the southern boundary. The creek is subject to periodic flooding, and its banks suffer from erosion; for the purpose of combatting such erosion plaintiff has spent several thousand dollars. To render the property suitable for the erection of dwellings the trial court found that plaintiff would be compelled to spend $12,500 for flood control devices and approximately $30,000 for site improvement. Plaintiff has also constructed a wooden bridge across the creek to provide access to the main portion of her property, which lies to the west of the creek. In 1951 plaintiff built a home for herself on the southeast portion of her Ross property; she has resided there continuously ever since.

When plaintiff purchased her property in 1938 it was zoned for single-family residential use but unrestricted as to lot size. In 1946 the Town of Ross enacted its present zoning scheme, dividing the town into three districts: commercial, community cultural, and residential. Nearly 99 per cent of the town's total area is within the residential district. The small commercial zone lies across the abandoned railroad right-of-way at the rear of plaintiff's property. To accommodate the Marin Art and Garden Center the town established the community cultural zone, which lies to the north of plaintiff's property and on the other side of Sir Francis Drake Boulevard.

The 1946 ordinance preserved the restriction to single-family dwellings upon property in the residential district, but added a provision to establish seven zones, with a minimum lot size specified for each zone. These lot sizes range from a minimum of 5,000 square feet through one acre. In 1951 the town adopted a municipal code and codified these zoning regulations. Section 10 105 contains the single-family dwelling use provision applicable to the residential district. Section 10 120 provides for the above-mentioned seven zones in the residential district; section 10 121 fixes the minimum lot size for each of the subzones. Section 10 128 establishes the procedure by which the town council may grant variances, exceptions or adjustments. The code, however, makes no provision for the elimination of non-conforming uses. The municipal code contains a provision that if any section or subsection is held to be invalid or unconstitutional, the validity of the remaining portions shall not be affected thereby.

Plaintiff's property is situated in residential class F. which fixes the minimum lot-size requirement at one acre. The land to the north of plaintiff's property on both sides of the boulevard is also zoned residential class F, but, as we have noted, the preponderant number of these lots contain approximately 10,000 to 20,000 square feet. The record does not disclose whether these lots were subdivided and the homes built on the property before the imposition of the minimum lot-size restriction, or, despite the zoning ordinances, built after such regulation. Nor does the record disclose whether these homes were permitted as variances. In any event, nothing in the record suggests that these improved 10,000 to 20,000 square foot lots do not comprise a relatively permanent part of the Ross landscape. With the few exceptions heretofore noted, the Town of Ross contains no multiple dwellings.

In 1949 plaintiff applied to the town council for a variance to permit the use of her property for multiple-residential purposes. The council denied her application. In 1957 plaintiff field a petition with the council for an amendment to the zoning ordinances to establish a classification for multiple garden apartments and to include her property in it. The council likewise denied this petition. In 1958 plaintiff again filed an application for a variance from the zoning ordinances to permit construction of garden apartments upon her property; when the council denied her application she brought the instant action.

In the present action plaintiff asked that the one-acre zoning limitation be declared invalid and that the court issue an order of mandamus compelling the Town of Ross to grant a building permit which would allow the construction of garden apartments upon her property. The court, having rendered findings, ¹ entered its judgment declaring that the provisions of the zoning ordinances were void as applied to plaintiff's property, and ordering the Twon of Ross to issue building permits for the erection of the proposed garden apartments. The Twon of Ross appeals from that judgment.

As to the one-acre limitation, we believe that, due to the location of the property in an area of smaller parcels, as well as to other considerations, the requirement is unreasonable, oppressive and unwarranted. As Chief Justice Gibson stated in Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 202 P.2d 38, 7 A.L.R.2d 990, 'The courts will, of course, inquire as to whether the scheme of classification and districting is arbitrary or unreasonable, but the decision of the zoning authorities as to matters of opinion and policy will not be set aside or disregarded by the courts unless the regulations have no reasonable relation to the public welfare or unless the physical facts show that there has been an unreasonable, oppressive, or unwarranted interference with property rights in the exercise of the police power.' (33 Cal.2d p. 461, 202 P.2d p. 42.) (See also Wilkins v. City of San Bernardino (1946) 29 Cal.2d 332, 337, 175 P.2d 542; Johnston v, City of Claremont (1958) 49 Cal.2d 826, 838, 323 P.2d 71.)

The uncontradicted physical facts show that the only one-acre parcels in the vicinity of plaintiff's property consist of the one lot directly across the boulevard, upon which stands a two-family dwelling, and the two one-acre lots further north, on the opposite side of the boulevard....