Minney v. City of Azusa

• Decision Date: 03 October 1958
• Citation: 164 Cal.App.2d 12,330 P.2d 255
• Court: California Court of Appeals Court of Appeals
• Parties: Robert F. MINNEY, Plaintiff and Appellant, v. CITY OF AZUSA, a municipal corporation, Defendant and Respondent. Civ. 22896.

Page 255

330 P.2d 255

164 Cal.App.2d 12

Robert F. MINNEY, Plaintiff and Appellant, v. CITY OF AZUSA, a municipal corporation, Defendant and Respondent.

Civ. 22896.

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

Oct. 3, 1958.

Hearing Denied Dec. 1, 1958.

Birnbaum & Hemmerling, Los Angeles, Hayden C. Covington, Brooklyn, N. Y., for appellant.

Tscharner & Tscharner, Azusa, for respondent.

ASHBURN, Justice.

Reverend Robert F. Minney, acting as congregation servant and presiding minister of Azusa Congregation of Jehovah's Witnesses (a religious organization), appeals from a judgment which upholds the denial of a variance sought by him under the city's Comprehensive Zoning Ordinance for the purpose of constructing within the R-1 or residential zone a church or 'Kingdom Hall' for use of said congregation. The basic claim is denial of religious liberty and violation of the First and Fourteenth Amendments to the Constitution of the United States.

The city of Azusa is a municipal corporation organized in 1898 under the General Municipal Act of 1883, St.1883, p. 93, and has a population of about 15,000. Its Comprehensive Zoning Ordinance No. 409 was passed in 1949 and defines numerous zones ranging from single family residential (R-1) to general manufacturing (M-2). It was amended before plaintiff's application for a variance was made, first by Ordinance No. 441 on January 7, 1952, and then by Ordinance No. 455 on August 4, 1952. As thus amended the ordinance provided at the time of plaintiff's application (in August, 1954) that the uses permitted in the R-1 or single family residence zone should be '(a) A one-family dwelling of a permanent character, placed in a permanent location and used by but one family; (b) Agriculture and horticulture, flower and vegetable gardening, nurseries and greenhouses used only for purposes of propagation and culture and not including any sale at retail from the premises nor any signs or displays; * * * (d) Libraries, museums, parks, playgrounds, public schools, and community buildings owned and controlled by the municipality or school district * * *.' (Quotations are from § 5.1 of Ordinance No. 455.) Other portions of the section are not material to the present problem. Section 7.1, covering zone R-3 or multiple family residence zones, authorizes '(a) Any use permitted in Zones R-1 and R-2. (b) Any flat building, apartment house, or bungalow court, together with the out-buildings necessary to such use, located on the same lot or parcel of land. (c) Churches and/or parochial schools.' (Quotation from Ordinance No. 441.) Section 8.1(b) of Ordinance No. 409 (not later amended) also permits churches in the R-4 or apartment house zone.

Appellant brought this action attacking the ordinance as discriminatory on its face and in its administrative application to his congregation through denial of a variance which would permit erection of a church in the R-1 zone. His second amended complaint, to which a demurrer was sustained without leave to amend, seeks mandamus, injunction, declaratory relief, certiorari and prohibition. Having been denied any relief he appeals from the judgment.

The pleading presents first the fundamental issue whether a zoning ordinance can lawfully exclude churches from a residential district. This question is settled in the affirmative so far as California law is concerned. Corporation of the Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of Porterville, 90 Cal.App.2d 656, 203 P.2d 823, arose under the zoning ordinance of the city of Porterville which established an R-1 zone wherein buildings were restricted to single family residences. Churches were included in the R-4 or 'unlimited residence' zone. The Mormon Church, through its Presiding Bishop, sought mandamus to compel the city authorities to issue a permit for construction of a church upon property owned by plaintiff within the R-1 zone. Demurrer having been sustained without leave to amend, plaintiff appealed from the judgment. 'Plaintiff's contention is that the zoning ordinance as applied to plaintiff to prevent its construction of a church for religious worship upon its property is invalid because, as so applied, it bears no substantial relation to the public health, safety, morals and general welfare and thus is beyond the police power of the State to enact, and further, because the application of the ordinance to petitioner results in a restriction of religious worship in the absence of any grave or imminent danger justifying such a restriction.' 90 Cal.App.2d at page 658, 203 P.2d at page 824. The court said, 90 Cal.App.2d at pages 659-660, 203 P.2d at page 825: 'A singel family residence may be much more desirable when not in an apartment house neighborhood or adjacent to a public building such as a church. The municipal legislative body may require that church buildings be erected to conform to health and safety regulations as provided in its building code and we see no reason to hold that churches may be erected in a single family residential area when a duplex, triplex, or other multiple dwelling can lawfully be excluded therefrom. The provision in the ordinance for a single family residential area affords an opportunity and inducement for the acquisition and occupation of private homes where the owners thereof may live in comparative peace, comfort and quiet. Such a zoning regulation bears a substantial relation to the public health, safety, morals and general welfare because it tends to promote and perpetuate the American home and protect its civic and social values.

'We find no merit in plaintiff's contention that the application of the ordinance to the plaintiff results in an unwarranted restriction of religious worship. * * * The denial of a building permit did not prohibit anyone from religious worship and there is nothing in the record before us to indicate that the church building could not be erected if located in the area zoned for that purpose.

'The petition fails to state a cause of action in that the facts alleged do not show that the ordinance in question is unreasonable and void as applied to plaintiff.' At page 661 of 90 Cal.App.2d, at page 826 of 203 P.2d: 'The burden is upon the plaintiff to allege and prove physical facts from which the court could conclude as a matter of law that the ordinance was unreasonable and invalid. Wilkins v. City of San Bernardino, supra, 29 Cal.2d 332, at page 338, 175 P.2d 542.

'In enacting zoning ordinances, the municipality performs a legislative function and every intendment is in favor of the validity of such ordinances. Jardine v. City of Pasadena, 199 Cal. 64, 72-73, 248 P. 225, 48 A.L.R. 509. It is presumed that the enactment as a whole is justified under the police power and adapted to promote the public health, safety, morals, and general welfare. Lockard v. City of Los Angeles, 33 Cal.2d 453, 460, 202 P.2d 38.

'There is reasonable justification for the action of the defendant city in prescribing the buildings which may be erected and constructed in the zone established for single family residences and in such cases the wisdom of the prohibitions and restrictions is a matter for legislative determination. Lockard v. City of Los Angeles, supra, 33 Cal.2d at page 461, 202 P.2d 38.' Our Supreme Court denied a hearing. The United States Supreme Court dismissed an appeal from the judgment 'for want of a substantial federal question' (338 U.S. 805, 70 S.Ct. 78, 94 L.Ed. 487) and denied a rehearing (338 U.S. 939, 70 S.Ct. 342, 94 L.Ed. 579). It later explained the philosophy of the ruling as follows: 'When the effect of a statute or ordinance upon the exercise of First Amendment freedoms is relatively small and the public interest to be protected is substantial, it is obvious that a rigid test requiring a showing of imminent danger to the security of the Nation is an absurdity. We recently dismissed for want of substantiality an appeal in which a church group contended that its First Amendment rights were violated by a municipal zoning ordinance preventing the building of churches in certain residential areas. Corporation of Presiding Bishop, C. J. C. L. D. S. v. Porterville, 1949, 338 U.S. 805, 70 S.Ct. 78.' American Communications Ass'n v. Douds, 339 U.S. 382, 397, 70 S.Ct. 674, 683, 94 L.Ed. 925.

The Porterville decision was followed in City of Chico v. First Ave. Baptist Church, 108 Cal.App.2d 297, 301, 238 P.2d 587, a case involving the validity of a zoning ordinance requiring the obtaining of a use permit before devoting to church uses property located in the residential zone. The Supreme Court recently recognized Porterville as good law, saying in Roman Catholic Welfare Corp. v. City of Piedmont, 45 Cal.2d 325, 334, 289 P.2d 438, 443: 'Respondents place reliance upon the case of Corporation of Presiding Bishop v. City of Porterville 90 Cal.App.2d 656, 203 P.2d 823, in which it was held that by ordinance the city could prohibit all churches in a residential area. That case is distinguishable from the one under consideration. Here, only private schools are excluded--not all schools as were all churches in the Porterville case.'

Although it did not follow the Porterville doctrine, the Supreme Court of Washington in State ex rel. Wenatchee Cong. etc. v. City of Wenatchee, 50 Wash.2d 378, 312 P.2d 195, 197, made pertinent observations concerning the weight of authority and the California ruling: 'Generally, zoning ordinances which wholly exclude churches in residential districts have been held to be unconstitutional. * * * However, in Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of Porterville, 90 Cal.App.2d 656, 203 P.2d 823, the California court expressed a view contrary to the prevailing weight of authority. The essence of the reasoning of the California Court seems to be that zoning legislation which prospectively treats all religious...