|
203
P.2d 823
(Cite
as: 90 Cal.App.2d 656, 203 P.2d 823)
District
Court of Appeal, Fourth District, California.
CORPORATION
OF PRESIDING BISHOP OF CHURCH
OF
JESUS CHRIST OF LATER-DAY SAINTS
v.
CITY
OF PORTERVILLE et al.
Civ.
3734.
March
17, 1949
Rehearing
Denied April 13, 1949.
Hearing
Denied May 12, 1949.
Appeal
from Superior Court, Tulare County; Frank Lamberson, Judge.
Proceeding by Corporation of the Presiding Bishop of the
Church of Jesus Christ of Latter-Day Saints, a Utah corporation
sole, against the City of Porterville and others, for a
writ of mandate to compel defendants to issue a permit for
the construction of a church. From a judgment dismissing
the petition, the plaintiff appeals.
Affirmed.
West
Headnotes
[1]
Zoning and Planning 26
414k26
Most Cited Cases
(Formerly
268k601(7))
A zoning ordinance, when reasonable in object and not arbitrary
in operation, constitutes a justifiable exercise of police
power.
[2]
Zoning and Planning 71.1
414.71.1
Most Cited Cases
(Formerly
414k71, 268k601(7))
The establishment, as a part of comprehensive and systematic
plan, of districts devoted to strictly private residences
or single-family dwellings from which are excluded business
or multiple building structures, is a legitimate exercise
of police power.
[3]
Zoning and Planning 71.1
414k71.1
Most Cited Cases
(Formerly
414k71, 268k601(7))
Zoning
ordinance establishing, as a part of comprehensive zoning
plan, strictly private residential districts from which
churches were excluded, was valid.
[4]
Evidence 5(2)
157k5(2)
Most Cited Cases
[4]
Evidence 21
157k21
Most Cited Cases
It is a matter of common knowledge that people in considerable
numbers assemble in churches and that parking and traffic
problems exist where crowds gather.
[5]
Constitutional Law 84.5(18)
92k84.5(18)
Most Cited Cases
(Formerly
92k84)
Where zoning ordinance established, as part of comprehensive
zoning plan, strictly private residential district from
which churches were excluded, application of ordinance to
religious organization which owned land in such district
and denial of building permit were not objectionable as
an unwarranted restriction of religious worship.
[6]
Constitutional Law 46(2)
92k46(2)
Most Cited Cases
Where petition alleged that zoning ordinance as applied
to petitioner so as to prevent petitioner from erecting
a church on property in residence district was unreasonable
and that ordinance deprived petitioner of property without
due process of law, but did not state facts necessary to
support the legal conclusions alleged, the petition did
not state cause of action for writ of mandate to compel
issuance of building permit.
[7]
Zoning and Planning 592
414k672
Most Cited Cases
(Formerly
268k122(2))
In proceeding for writ of mandate to compel issuance of
permit for construction of church notwithstanding zoning
ordinance, burden was on petitioner to allege and prove
physical facts from which court could conclude as a matter
of law that ordinance was unreasonable and invalid.
[8]
Zoning and Planning 672
414k672
Most Cited Cases
(Formerly
268k122(2))
In
enacting zoning ordinances, municipality performs a legislative
function and every intendment is in favor of validity of
such ordinances.
[9]
Zoning and Planning 674
414k674
Most Cited Cases
(Formerly
268k122(2))
Presumption exists that zoning ordinance as a whole is justified
under police power and adapted to promote public health,
safety, morals, and general welfare.
[10]
Zoning and Planning 615
414k615
Most Cited Cases
(Formerly
268k63(1))
[10]
Zoning and Planning 72
414k72
Most Cited Cases
(Formerly
268k601)
Action
of municipality in prescribing buildings which may be erected
and constructed in zone established for single family residences
is justifiable, and wisdom of prohibitions and restrictions
is matter for legislative determination.
[11]
Pleading 225(2)
302k225(2)
Most Cited Cases
Where
plaintiff elected to stand on allegations of petition and
declined to amend it, informing court that amendment would
be futile, sustaining of demurrer to petition without leave
to amend was not an abuse of discretion. **824 *657 Johnson,
Harmon, Stirrat & Henderson, of San Francisco, and Jamison
& Jamison, of Porterville, for appellant.
Waldo
E. Burford, City Atty., of Porterville, and William MacKenzie
Brown and Leon Thomas David, both of Los Angeles, for respondents.
MUSSELL, Justice.
This
appeal is from a judgment dismissing plaintiff's petition
for writ of mandate. The judgment was based on an order
sustaining the demurrer of defendants to the petition without
leave to amend, dismissing the same and quashing the alternative
writ of mandate theretofore issued.
The plaintiff, by its petition for a writ of mandate, sought
to compel the defendants to issue a permit for the construction
of a church on property owned by plaintiff in the City of
Porterville. Plaintiff alleged that its application to erect
a church upon its property was duly filed with the proper
city officials and that defendant city building inspector
refused to issue a permit for the erection of the church
on the ground that the *658 property involved was zoned
by the city solely for the erection of single family dwellings.
A copy of the zoning ordinance of the City of Porterville
was attached to the petition. By its provisions, as far
as applicable here, the city was zoned as follows: R-1,
wherein buildings are restricted to single family residences;
R- 2, to duplex or two-family residences; R-3, to multiple
residences, and R-4, to permit unlimited residences. In
R-1, only single family dwellings may be erected; in R-2,
there are permitted all uses that are permitted under R-1,
plus duplexes and two family residences; in R-3, all uses
of R-1 and R-2 are permitted, plus apartment houses, multiple
family dwellings, hotels, boarding and lodging houses, clubs,
fraternities, sororities, hospitals, etc. In R-4, called
'unlimited residence,' all uses of the preceding zones are
permitted, plus libraries, museums, schools, churches and
religious institutions, etc.
At
the time the property was acquired by plaintiff it was partly
within the city and thereafter was taken within the city
limits and included in an area limited in its use to single
family dwelling units, being zone R-1. Plaintiff's application
for a building permit stated that the use and occupancy
to which the building was to be put was 'to provide a chapel
and classrooms for religious worship and study and accommodations
for youth activities and other church activities.'
[1][2]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. The precise question
of whether or not there may be established, as a part of
a comprehensive zoning plan, strictly private residential
**825 districts from which churches are excluded and in
which they are prohibited, has apparently not been decided
in this State, however, it has been held that general business
enterprises, apartments, tenements and like structures may
be excluded and prohibited in private residential districts.
Miller v. Board of Public Works, 195 Cal. 477, 490, 234
P. 381, 38 A.L.R. 1479. As was said in Wilkins v. City on
San Bernardino, 29 Cal.2d 332, 337, 175 P.2d 542, 547:
'It is well settled that zoning ordinances, when reasonable
in object and not arbitrary in operation, constitute a justifiable
*659 exercise of police power, and that the establishment,
as part of a comprehensive and systematic plan, of districts
devoted to strictly private residences or single family
dwellings from which are excluded business or multiple dwelling
structures, is a legitimate exercise of the police power.
See Jones v. City of Los Angeles, 211 Cal. 304, 307, 295
P. 14; Miller v. Board of Public Works, 195 Cal. 477, 490,
234 P. 381, 38 A.L.R. 1479. * * * Every intendment is in
favor of the validity of the exercise of police power, and,
even though a court might differ from the determination
of the legislative body, if there is a reasonable basis
for the belief that the establishment of a strictly residential
district has substantial relation to the public health,
safety, morals or general welfare, the zoning measure will
be deemed to be within the purview of the police power.
(Citing cases.)'
In
Miller v. Board of Public Works, supra, 195 Cal. at page
492, 234 P. at page 386, 38 A.L.R. 1479, it was said:
'There are some decisions which do not uphold the validity
of a zoning ordinance establishing strictly residential
districts. We are of the opinion, however, that the better
reasoned cases are in favor of the validity of comprehensive
zoning which establish strictly private home districts,
and that the most which can be said of the cases to the
contrary is that they merely show that this is a question
upon which reasonable minds may differ.'
[3][4]We
are in accord with this view and we conclude that since
the city had power to zone the property herein affected,
strictly for single family dwellings, there was no abuse
of the power in prohibiting the erection and construction
of church buildings therein. It is a matter of common knowledge
that people in considerable numbers assemble in churches
and that parking and traffic problems exist where crowds
gather. This would be true particularly in areas limited
to single family dwellings. There necessarily is an appreciable
amount of noise connected with the conduct of church and
'youth activities.' These and many other factors may well
enter into the determination of the legislative body in
drawing the lines between districts, a determination primarily
the province of the city.
A
single 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
*660 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.
[5]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 petitioner is not
a congregation, but holds his property as a corporation
sole, the existence of which depends upon the laws of the
State. Having such right from the State, the enjoyment of
the property is subject to reasonable regulations. The denial
of a building permit did not prohibit any one from religious
worship and there is **826 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.
[6]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. The allegations are:
'That said zoning ordinance as applied to your petitioner
so as to prevent your petitioner from erecting a church
on the above mentioned property, is unconstitutional and
void, in that said ordinance is arbitrary and unreasonable
and is without any substantial relation to the public health,
safety, morals or general welfare; that said ordinance is
not based upon a finding by the governing body of the city
of Porterville that such zoning is necessary to the public
health, safety, morals or general welfare of the community.
That said ordinance * * * is not based on the general welfare
of the community and does not tend to preserve or promote
the public health, safety, or morals, and constitutes an
arbitrary exclusion of a church * * *. That said ordinance
* * * constitutes a deprivation of petitioner's property
without due process of law * * *.'
Matters
of fact necessary to support the legal conclusions alleged
are not stated, and the petition therefore states no cause
of action. Wilkins v. City of San Bernardino, supra, 29
Cal.2d 332, at page 344, 175 P.2d 542.
[7]*661
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.
[8][9] 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, 202 P.2d 38.
[10]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 453, 202 P.2d 38.
[11]Plaintiff
argues that the trial court should not have sustained the
demurrer to the petition without leave to amend. The plaintiff,
however, did not request leave to amend and the judgment
contains a recital that petitioner 'advised the Court that
leave to amend would be futile.' Plaintiff's contention
in the trial court was as stated in his reply brief--'That
the prohibition of churches in virtually all residential
zones is on its face not a proper exercise of the police
power, and that it violates the constitutional immunity
of freedom of religious worship.'
Where, as here, plaintiff elected to stand on the allegations
of the petition, and declined to amend it, informing the
court that amendment would be 'futile,' it cannot be held
that there was an abuse of discretion in the ruling of the
trial court.
Judgment affirmed.
BARNARD,
P. J., and GRIFFIN, J., concur.
Hearing denied; SHENK and CARTER, JJ., dissenting.
Cal.App. 4 Dist. 1949
Copr.
© West 2002 No Claim to Orig. U.S. Govt. Works
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