Melton v. City of San Pablo

• Decision Date: 25 July 1967
• Citation: 61 Cal.Rptr. 29,252 Cal.App.2d 794
• Parties: George MELTON, Plaintiff and Appellant, v. The CITY OF SAN PABLO, a political subdivision of the State of California, Defendant and Respondent. Civ. 23681.
• Court: California Court of Appeals Court of Appeals

Page 29

61 Cal.Rptr. 29

252 Cal.App.2d 794

George MELTON, Plaintiff and Appellant, v. The CITY OF SAN PABLO, a political subdivision of the State of California, Defendant and Respondent.

Civ. 23681.

Court of Appeal, First District, Division 2, California.

July 25, 1967.

Joseph Landisman, Berkeley, Francis T. Cornish, Alturas, for appellant.

Leland F. Reaves, Richmond, for respondent.

TAYLOR, Associate Justice.

This is an appeal from a judgment for defendant, City of San Pablo (hereafter City), in an action seeking declaratory relief to determine the constitutionality of a retroactive zoning ordinance requiring all portable or temporary vending establishments to obtain a use permit. The major contentions concern the constitutionality and interpretation of the ordinance and whether the trial court correctly concluded that plaintiff's use of his property was not a pre-existing lawful non-conforming use.

The record reveals the following facts, which are not in dispute: In October 1963 plaintiff acquired a parcel of property in the City and moved into the house located on the property. The parcel was zoned for commercial use, including the restaurant business. In November 1963 plaintiff brought a remodeled bus on his property, connected it to the utility lines serving his home, and surrounded it with a small picket fence. After obtaining the necessary business licenses and health permits, plaintiff began the operation of a shortorder restaurant in the bus.

On April 6, 1964, the City Council adopted the amendment to its zoning ordinance here in dispute, Ordinance No. 455, set out in full below. ¹ Plaintiff applied for a use permit under Ordinance No. 455 and indicated that his restaurant was a self-contained unit that could be moved on a moment's notice. The City Council issued a use permit allowing plaintiff to operate his restaurant as a portable or temporary use for 6 months. After the expiration of the 6-month period, plaintiff made no further application for a permit, but filed this action challenging the constitutionality of Ordinance No. 455. His complaint for declaratory relief alleged that his restaurant business was not mobile, portable or temporary, and sought a declaration that Ordinance No. 455 did not apply to his property.

At the trial, plaintiff conceded that the bus was movable, but indicated it was a permanent installation on his property. The City Building Inspector stated that the bus had no foundation and was not framed in the normal way that buildings are framed; that it did not meet the building codes in any way and that plaintiff had connected the bus to the gas, electrical, water and sewer lines of his home without any permits from or inspection by the Building Department of the City, as required by the City's plumbing and electrical codes.

The trial court found the facts substantially as stated above and further found that Ordinance No. 455 was constitutional, and that plaintiff's use of his property was mobile and portable within the meaning of the ordinance, as well as a violation of the City's building, electrical and plumbing codes. Accordingly, the court concluded that Ordinance No. 455 applied to plaintiff's business.

On this appeal, plaintiff contends: that the ordinance is an unconstitutional exercise of the police power and is unconstitutionally vague as it lacks standards concerning its application; that the trial court's findings and conclusions concerning his violations of the plumbing, building and electrical codes of the City are not supported by the evidence or relevant to the instant action as the codes apply only to buildings; that the court erroneously interpreted the language of the ordinance to apply it retroactively; and that, in any event, the ordinance could not properly be applied to his lawful pre-existing use, which was not a nuisance.

We turn first to the main question presented, namely, the constitutionality of Ordinance No. 455. Plaintiff contends that the ordinance is unconstitutional as it is an improper exercise of the police power designed to put him out of business and lacks any standards for its application.

We approach the problem with certain well established principles in mind. Municipal ordinances are presumed to be constitutional if any rational consideration supports their enactment (Zahn v. Board of Public Works, 195 Cal. 497, 234 P. 388, affd. 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074; Miller v. Board of Public Works, 195 Cal. 477, 490, 234 P. 381, 38 A.L.R. 1479). If any rational motive exists for the exercise of the police power, the motive for its exercise becomes immaterial and not a proper subject of inquiry and the court will not substitute its judgment for that of the legislative body (Simpson v. City of Los Angeles, 4 Cal.2d 60, 65, 47 P.2d 474; Stahm v. Klein, 179 Cal.App.2d 512, 518--520, 4 Cal.Rptr. 137). Whether the regulation is arbitrary or unreasonable must be determined under the established rules governing judicial review of exercises of the police power. That power is elastic, and capable of expansion to meet existing conditions of modern life (National Advertising Co. v. County of Monterey, 211 Cal.App.2d 375, 377--378, 27 Cal.Rptr. 136).

The standard by which the reasonableness of a zoning ordinance is tested is stated in Consolidated Rock Products Co. v. City of Los Angeles, 57 Cal.2d 515, at p. 522, 20 Cal.Rptr. 638, at p. 642, 370 P.2d 342, at p. 346, as follows: 'As a corollary to this recognized principle of the capacity of the police power to meet the reasonable current requirements of time and place and period in history is the equally well settled rule that the determination of the necessity and form of such regulations, as is true with all exercises of the police power, is primarily a legislative and not a judicial function, and is to be tested in the courts not by what the judges individually or collectively may think of the wisdom or necessity of a particular regulation, but solely by the answer to the question is there any reasonable basis in fact to support the legislative determination of the regulation's wisdom and necessity?'

If the necessity or propriety of a zoning regulation is a question upon which reasonable minds might differ (Miller v. Board of Public Works, supra) or is fairly debatable (Lockard v. City of Los Angeles, 33 Cal.2d 453, 462, 202 P. 38, 7 A.L.R.2d 990), the legislative determination will not be disturbed. The courts may differ with the Legislature as to the wisdom and propriety of a particular enactment as a means of accomplishing a particular end, but as long as there are considerations of public health, safety, morals, or general welfare which the legislative body may have had in mind and which would justify the regulation, it must be assumed by the court that the legislative body had those considerations in mind and that those considerations did justify the regulation (Miller v. Board of Public Works, supra, 195 Cal. p. 490, 234 P. 381).

Thus, we must determine whether the San Pablo City Council could reasonably have had such considerations in mind in adopting Ordinance No. 455 (Burk v. Municipal Court, 229 Cal.App.2d 696, 701, 40 Cal.Rptr. 425). A reading of the entire ordinance indicates that it was designed to regulate various kinds of temporary businesses such as theatres and circuses, and made retroactive with respect to temporary or mobile vending establishments not constructed in accordance with the City's building codes. Although there are no California authorities precisely in point, there are many pertinent authorities from other jurisdictions upholding the validity of zoning ordinances that severely restrict or prohibit the location and use of house trailers or mobile homes (Wright v. Michaud (1964) 160 Me. 164, 200 A.2d 543).

In the leading case of Napierkowski v. Gloucester Tp. (1959) 29 N.J. 481, 150 A.2d 481, the court upheld an ordinance prohibiting a landowner from retaining and utilizing a trailer home on her lot located in the township. The court pointed out that most of the authorities approve the strict limitations on the location and use of house trailers even where there is but a single trailer involved. People v. Lederle, 206 Misc. 244, 132 N.Y.S.2d 693, held that under an ordinance restricting occupancy to one-family dwellings, a trailer may not be put on the premises of the property owner and used for living purposes. Corning v. Town of Ontario, 204 Misc. 38, 121 N.Y.S.2d 288, and PEOPLE V. CLUTE, 47 MISC.2D 1005, 263 N.Y.S.2D 826,² are to the same effect. In Craver v. Zoning Board of Adjustment (1966) 267 N.C. 40, 147 S.E.2d 599, the court upheld the denial by a zoning board of a permit to the petitioners who had parked a mobile home on the same lot with their home in a rural area, hooked it up to their water pump and septic tank, and used it as the temporary living quarters for the retired members of the family who spent most of their time elsewhere. In Livingston Tp. v. Marchev (1964) 85 N.J.Super. 428, 205 A.2d 65, the court upheld a municipal zoning ordinance prohibiting the parking of trailers within the municipality except in trailer camps and prohibiting the defendants from parking their camp trailer behind their dwelling without enclosing it in a building, as required by another ordinance.

While the above cases relate to the regulation or prohibition of the use of single trailers in residential or rural districts, their reasoning, based on public health and safety considerations, can be applied to uphold the regulation of a bus used for restaurant purposes in commercially zoned areas. If anything, the case for the municipal regulation of the restaurant bus, with its attendant implied invitation to the public to enter and use the eating facilities, is even more convincing. In addition to the obvious health and safety hazards, there are other considerations that a municipality may take into account in regulating businesses.

C...