A. L. WILKINS, Respondent, v. CITY OF SAN BERNARDINO et al., Appellants, 29 Cal. 2d 332

GIBSON, C. J. Plaintiff sought declaratory relief, claiming that, the zoning ordinance of the city of San Bernardino was unreasonable and invalid as applied to the west 112 feet of his property because that portion was placed in a single family dwelling zone. The remainder of this property is located in a small or “spot” business zone which is'in the center of a large residential district, zoned for single family dwellings.

Plaintiff, in substance, is attempting to obtain an extension of one arm of this small business zone by judicial, decree, contrary to the legislative determination by which the boundaries of the zone were established. The defendants appeal from a judgment sustaining plaintiff’s claims-and en- ■ joining enforcement of the ordinance as it affects the property in- Question. ' - The accompanying map, page 336, has been prepared in order that the fácts inay be more readily understood.

It is based on the city- zoning map, exhibit “C,” with the addition of "cértain markings, such as lot numbers and lines tó indicate the boundaries of the lots. The property involved in this case is the west 112 feet of lots 69 and 70 in the block bounded by Acacia Street on the west, by 33d Street on the north, by E Street on the east and by Marshall Boulevard on the south. This block was originally divided into lots 50 feet wide, each .of which r.an.. the length of the block (about 394 feet) from Acacia.Street on the west to E Street on the east.

Starting on the southerly side, the first four lots are numbered 72j 7l, 70 and 69. Plaintiff owns the whole of lots 69 and 70, and the easterly portion of lpts 71 and 72, as well as other property bordering on the intersection of Marshall Boulevard and E Street. The portions of lots 71 and 72 owned by plaintiff, and all of lots 69 and 70 except the westerly 112 feet, were zoned for business. Plaintiff had constructed a business building on his portion of lots 71 and 72, and had erected multiple dwellings and garages on the middle portions of lots 69 and 70 (east of the disputed westerly 112 feet).

According to the record there are only three other sections in the immediate vicinity (each being but a fraction of a block) which are zoned to permit multiple dwellings.

Plaintiff’s lots adjoin an area at the intersection of Marshall Boulevard and E Street which is “spot” zoned to permit business uses, but on the other three sides all contiguous property is zoned as residential; and, except as noted, all the surrounding property for a number of blocks is likewise zoned for and exclusively devoted to single family dwellings. (See map, p. 336.) In April, 1942, after two applications for rezoning had been denied as to the westerly 112 .feet, plaintiff applied for a building permit for multiple dwellings on this property, and this application was also denied because the property was not zoned for such structures.

In June, 1942, he applied for and obtained permits to erect single family two^story.dwellings and garages on the west 112 feet of these lots. The plans submitted with the applications showed single family dwellings, but instead of following the plans he erected two multiple family units, each with an apartment and garages .on the first floor and two apartments on the second floor. ' This action was admittedly in violation of the building permits and the zoning ordinance, and it clearly appears that the violations were deliberate and willful.

The trial court made a number of findings, some more in the nature of conclusions of law, to the effect that the use of the buildings for multiple dwelling purposes is in the enjoyment of a substantial property right of plaintiff; that such a use is not detrimental to health, safety, morals or welfare ; that such use does not impede, hinder or interfere with the attainment of the objectives of the zoning ordinance; that the four apartments are so placed and erected that they are more adaptable and more useful for multiple dwelling purposes than for single family dwellings in that they adjoin other property now used for business and commercial purposes ; that the enforcement of the ordinance would be an oppressive, confiscatory and unreasonable restriction on plaintiff’s-property rights; that multiple dwelling status appears to exist on both sides of Marshall Boulevard between Acacia and F Streets; that on Marshall Boulevard between Acacia and E Streets (lots 71 and 72) there are four frontages, each occupying less than the 5,000 square feet required by another ordinance for single family dwellings; that it is impracticable to maintain and limit the use of the westerly 112 feet of lots 69 and 70 to a single family classification; that no consideration of public health, peace, morals, safety or welfare requires that plaintiff be prohibited from using the structures as multiple dwellings; that the apartment buildings upon the middle portion of lots 69 and 70 are unsightly and no ornament to that locality; that the extension of those buildings upon the west 112 feet of those lots presents a decided improvement in the general view from the Acacia Street side; that the land values have increased because of the development of a community business center; and that there is a shortage of housing facilities in the city.

The defendants contend that the findings do not support the judgment and are not supported by the evidence; that the existence of adjoining business property does not invalidate the zoning ordinance; that the presence of near-by boulevards and nonconforming uses is immaterial, as is the existence of a housing shortage in the city; that plaintiff cannot claim any rights based on his violation of the ordinance, and hence cannot claim that it is impracticable to use the buildings as single family dwellings; that every intendment is in favor of the constitutionality of zoning ordinances; and that there is no oppressive, confiscatory or unreasonable restriction on plaintiff’s property rights.

The plaintiff claims that the judgment is amply supported by the findings; that the sufficiency of the evidence cannot be questioned in view of the facts that the trial judge viewed the premises and that this constitutes additional and independent evidence; that whether or not the property has become unsuitable and impracticable for use for single family dwellings presents a question of law for the court; and that judicial notice may be taken of changing conditions and matters of common knowledge in the city, such as the shortage of housing facilities.

It is well settled that zoning ordinances, when re, sonable in object and not arbitrary in operation, constitute a justifiable 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 P. 381, 38 A.L.R. 1479].) In. the present case, there is no contention that the zoning ordinance as a whole is invalid, bnt only that its application to part of plaintiff’s property is unreasonable, and hence we must assume, in accordance with the rule that every intendment is in favor of the validity of such ordinances, that the enactment as a whole is a proper exercise of the police power and adapted to promote the public health, safety, morals and general welfare.

This being so, the '-sole question is whether the application of the ordinance to plaintiff’s property is so oppressive and unreasonable-as to justify the granting of relief, or whether there was any reasonable justification for the legislation as applied to plaintiff’s property so as to make the action of the city, in denying plaintiff’s applications for rezoning, a legitimate exercise of the police power.

A city cannot unfairly discriminate against a particular parcel of land, and the courts may properly inquire as to whether the scheme of classification has been applied fairly and impartially in each instance. (Reynolds v. Barrett, 12 Cal.2d 244, 251 [83 P.2d 29].) But the mere fact that some hardship is experienced is not material, since “Every exercise of the police power is apt to affect adversely the property interest of somebody.” (Zahn v.

Board of Public Works, 195 Cal. 497, 512 [234 P. 388].) It is implicit in the theory of police power that an individual cannot complain of incidental injury, if the power is exercised for proper purposes of public health, safety, morals and general welfare, and if there is no varbitrary and unreasonable application in the particular case.

Where it is claimed that the ordinance is unreasonable as applied to plaintiff’s property, or that a change in conditions has rendered application of the ordinance unreasonable, it is incumbent on plaintiff to produce sufficient evidence from which the court can make such findings as to the physical facts involved as will justify it in concluding, as a matter of law, that the ordinance is unreasonable and invalid.

It is not sufficient for him to show that it will be more profitable to him to make other use of his property, or that such other use will not cause injury to the public, but he must show an abuse of discretion on the part of the zoning authorities and that there has been an unreasonable and unwarranted exercise of the police power. (See Rehfeld v.

City etc. of San Francisco, 218 Cal. 83, 85 [21 P.2d 419].) 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 pnrview of the police power. (Acker v. Baldwin, 18 Cal.2d 341, 344 [115 P.2d 455] ; Miller v.

Board of Public Works, 195 Cal. 477, 490 [234 P. 381, 38 A.L.R. 1479]; Zahn v. Board of Public Works, 195 Cal. 497 [234 P. 388] ; see Otis v. City of Los Angeles, 52 Cal.App.2d 605, 614 [126 P.2d 954].) In affirming the judgment of this court in Zahn v. Board of Public Works, 195 Cal. 497 [234 P. 388], where the city council concluded that the public welfare would be promoted by restricting a certain district which included the plaintiff’s property, the United States Supreme Court said, “it is impossible for us to say that their conclusion in that respect was clearly arbitrary or unreasonable.

The most that can be said is that whether that determination was an unreasonable, arbitrary or unequal exercise of power is fairly debatable. In such circumstances, the settled rule of this court is that it will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining the question.” (Zahn v.

Board of Public Works, 274 U.S. 325, 328 [47 S.Ct. 594, 71 L.Ed. 1074].) The courts cannot write the zoning laws and cannot say that the- legislative body has erred in drawing the lines of the districts, or in restricting the territory devoted to business or to multiple dwellings, unless there is a clear showing of abuse of legislative discretion, i. e., that the restrictions are unreasonable. As stated in Miller v.

Board of Public Works, 195 Cal. 477, 493, 495 [234 P. 381, 38 A.L.R. 1479], “The man who is seeking tó establish a permanent home would •not deliberately'choose to build next to an apartment house, and it is common experience that the man who has already built is dissatisfied with his home location and desires a change. . . .

Somewhere the line of demarcation must be drawn, and it is primarily the province of the municipal body to which the zoning function is committed to draw that line of demarcation, and it is neither the province nor the duty of courts to interfere with the discretion with which such bodies are invésted in the absence of a clear showing of an abuse of that discretion.

In short, as previously indicated, we are not permitted to substitute our judgment for the legislative judgment.” An examination of the California decisions discloses that the cases in which zoning ordinances have been held invalid and unreasonable as applied to particular property fall roughly into four categories: 1. Where the zoning ordinance attempts to exclude and prohibit existing and established uses or businesses that are not nuisances. (Jones v. City of Los Angeles, 211 Cal. 304 [295 P. 14] ; see Biscay v. City of Burlingame, 127 Cal.App. 213 [15 P.2d 784].) 2.

Where the restrictions create a monopoly. (In re White, 195 Cal. 516 [234 P. 396]; Wickham v. Becker, 96 Cal.App. 443 [274 P. 397]; Andrews v. City of Piedmont, 100 Cal.App. 700 [281 P. 78].) 3. Where the use of adjacent property renders the land entirely unsuited to or unusable for the only purpose permitted by the ordinance. (Skalko v. City of Sunnyvale, 14 Cal.2d 213 [93 P.2d 93].) 4.

Where a small parcel is restricted and given less rights than the surrounding property, as where a lot.in the center of a business or commercial district is limited to use for residential purposes, thereby creating an “island” in the middle of a larger area devoted to other uses. (Reynolds v. Barrett, 12 Cal.2d 244 [83 P.2d 29]; see Hagenburger v. City of Los Angeles, 51 Cal.App.2d 161 [124 P.2d 345] ; Hurst v.

City of Burlingame, 207 Cal. 134 [277 P. 308].) There is no claim that the present case falls within the first two categories, and it clearly appears that it does not come within either of the others, but instead presents the exact opposite of the fourth class. An examination of the facts in Skalko v. City of Sunnyvale, 14 Cal.2d 213 [93 P.2d 93], indicates clearly that the present case has nothing in common with that case.

In the Skalko case, the twenty-four hour operation of an adjacent cannery, with its accessories, the existence of heavy automobile and truck traffic in front of plaintiff’s property day and night, and the frequent operation of a near-by railroad, which hauled freight cars to the cannery at all hours, rendered the property entirely unsuited to and unusable for the only purpose permitted by the ordinance.

Such is not the case here, and there is no finding or conclusion of law to that effect, nor are there any findings as to the existence of any physical facts which would justify the court in making such a conclusion. On the contrary the court merely concludes that the new buildings are more adaptable to use for multiple dwelling purposes and that it would be impracticable to use them for single family dwellings.

Incidentally it should be noted that the court does not find that there would have been any impropriety or unreasonableness in applying the ordinance to the property as it existed "before plaintiff built the new buildings, but deals solely with conditions existing after plaintiff had proceeded in disregard of the ordinance. Likewise, the present case does not come within the fourth class listed above.

So-called "spot” zoning results in the creation of two types of-"islands.” As pointed out above, the objectionable type arises when the zoning authority improperly limits the use which may be made of a small parcel located in the center of an unrestricted area. The second type of "island” results when most of a large district is devoted to a limited or restricted use, but additional uses are permitted in one or moré "spots” in the district.

It is the second type of "island” that is presented in this case, and if there is any discrimination, it is in favor of the "island” since it may be devoted to a greater number of uses than the surrounding térritory. It is clearly within the discretion of the legislative body of the city to determine whether such an "island” should be enlarged or not, and the mere fact that the owner may enjoy greater benefits, or that his property will be enhanced in value, if the size of the island is increased, cannot entitle him to compel the allowance of such increase in size. (Rehfeld v.

City etc. of San Francisco, 218 Cal. 83 [21 P.2d 419]; see Otis v. City of Los Angeles, 52 Cal.App.2d 605 [126 P.2d 954] ; Kort v. City of Los Angeles, 52 Cal.App.2d 804 [127 P.2d 66]; Rubin v. Board of Directors, 16 Cal.2d 119 [104 P.2d 1041].) Zoning necessarily involves boundary problems and, when "spot” zoning is permitted in a residential district, the legislative body must determine where the boundary is tó be placed, attempting, as far as possible, to minimize the resulting inconveniences.

This is essentially a legislative problem, and the determination may be attacked only if there is no reasonable basis therefor. Often there may be little difference in the character of the property on either side of the line, but such a showing will not justify a judicial alteration or extension of -the boundaries.

If an owner could compel the extension of the boundaries of the "island,” by any 'süch showing, then the next adjoining owner in turn' could likewise make the same kind of a showing" and obtain another extension of the “island” to his property, and in a short time there would be an end to the effectiveness of all zoning legislation.

In considering the plaintiff’s contentions it must be remembered, first, that he does not occupy the position of one whose property is unduly restricted as to use in comparison with the surrounding territory, but instead he is simply seeking to enlarge an “island” which is zoned for additional uses; and, second, that many of the alleged hardships of which he complains are admittedly the result of his own actions in violating the duly enacted ordinances of the city. “No one can take advantage of his own wrong” (Civ. Code, § 3517), and plaintiff should not be permitted to benefit from his own wrongdoing. (Acker v.

Baldwin, 18 Cal.2d 341 [115 P.2d 455].) For instance, he cannot derive any support from the finding that the four new apartments are more adaptable and more useful for multiple dwelling purposes than for single family dwellings. If true, this is the result of plaintiff’s deliberate and willful violation of the zoning ordinance.

The constitutionality of the ordinance or of its application to particular property must be determined upon the basis of the facts and conditions as they existed prior to the time plaintiff proceeded in disregard of the ordinance, and the court must wholly ignore all conditions which resulted from the plaintiff’s actions.

If this were not so, then any landowner could violate a zoning ordinance with impunity, secure in the knowledge that, by just going far enough, by devoting his land to unrestrictéd uses, and by creating a situation in which enforcement would result in hardship to him, he could obtain a judgment that the ordinance is unconstitutional as applied to the then existing circumstances as changed by his actions.

While a plaintiff may ignore an unconstitutional ordinance, this does not, and cannot, mean that a person may proceed contrary to an ordinance and then claim that it is unconstitutional because of the results and effects of his own actions in disregard of the ordinance. In this case, it appears that the .trial court was improperly influenced by the conditions which resulted from plaintiff’s actions in disregard of the ordinance.

This is indicated by the trial court’s statement that the constitutionality of the ordinance must be determined “as it applies to plaintiff under conditions now existing,” and by the finding .to the ■effect that the use of the newly erected buildings for multiple dwelling purposes is in the enjoyment of a substantial property right of plaintiff; that they are so placed and erected that they are more adaptable and more useful for multiple dwelling purposes than for single family dwellings; that it is impracticable to limit the use of the property to single family dwellings ; and that the new buildings present a decided improvement in the general view.

If such findings, or the other findings in this case, would uphold a judgment of unconstitutionality of the ordinance, it necessarily follows that no such ordinance would be enforceable if the landowner acted first and devoted his lánd to forbidden uses. There is, and there can be, no legal principle which will thus place a premium on deliberate violation of law, and allow the violator to profit by his own wrong.

Plaintiff places great reliance on the fact that the trial judge viewed the premises, and he claims that what the judge saw is independent and additional evidence, and that the sufficiency of the evidence cannot be questioned. This may be admitted for the sake of argument, since it clearly appears that the findings do not support the judgment. The court found that the use of the property for multiple dwelling purposes is in the enjoyment of a substantial property right of plaintiff.

To the extent that this is an adjudication of the existence of a right to use the property for such purposes, in violation of the ordinance, it is an improper conclusion of law; and to the extent that it is a finding that plaintiff would derive a benefit from such uses, it is immaterial. Another finding is to the effect that such use does not impede, hinder or interfere with the attainment of the objectives of the zoning ordinance.

This finding, while really a conclusion of law, is immaterial and does not justify a decision for plaintiff in the absence of facts showing that the ordinance is unreasonable or invalid as applied to plaintiff’s property. The fact that there is no showing by the city that any harm would result to the zoning plan does not render a denial of the extension unreasonable. (Rehfeld v.

City etc. of San Francisco, 218 Cal. 83 [21 P.2d 419].) Plaintiff is likewise not aided by the finding that multiple dwelling status appears to exist on a small part of the next block on both sides of Marshall Boulevard between Acacia and P Streets. There is no other finding as to multiple dwelling use in the vicinity, except as to plaintiff’s property, and according to the record (see map) the only other property in the immediate vicinity which is zoned to permit such use is a small

section located some three blocks from the property in dispute. The mere existence of some adjacent property devoted to other uses does not destroy the character of restricted property for residential purposes or render the restriction arbitrary. (Acker v. Baldwin, 18 Cal.2d 341, 345 [115 P.2d 455]; Kort v. City of Los Angeles, 52 Cal.App.2d 804, 810 [127 P.2d 66] ; Smith v.

Collison, 119 Cal.App. 180, 186 [6 P.2d 277].) The fact that there are single family dwellings near by (on lots 71 and 72) which occupy slightly less than the amount of land required for such dwellings by the terms of another ordinance does not show that there has been any unreasonable discrimination, regardless of whether they were erected in violation of law or pursuant to a variance granted by the proper authority.

The presence of near-by unsightly multiple dwellings on plaintiff’s own property (middle of lots 69 and 70) cannot excuse or sanction his violation of the zoning ordinance, or furnish any reason for the granting of any extension of use to the remainder of his property. The finding that land values have increased because of the development of a community business center does not indicate any abuse of discretion or unreasonableness in the refusal to extend the district in which business or other uses are permitted.

The fact that there is a housing shortage might justify the city, or perhaps even the court, under proper conditions, in temporarily suspending the operation of the zoning ordinance during an emergency (see City of San Diego v. Van Winkle, 69 Cal.App.2d 237 [158 P.2d 774]), but it furnishes no justification for a judicial decision voiding the operation of the ordinance for all time to come or for plaintiff’s action in violating the ordinance.

The findings that the enforcement of the ordinance would be oppressive, confiscatory and an unreasonable restriction on plaintiff’s property rights, that it is impracticable to limit the use of the westerly 112 feet of lots 69 and 70 to. a single family classification, that to do so constitutes an unwarranted and unreasonable invasion of plaintiff’s property rights, and that no consideration of public health, peace, morals, safety or welfare requires that plaintiff be prohibited from using the structures as multiple dwellings, are in reality not findings of fact, but conclusions of law, and they can stand only if they are supported by the findings of fact.

In this ease, there are no findings of fact to support these conclusions, and the judgment must fall. In view of the findings of fact in this case, we cannot say that there was any abuse of legislative discretion in denying plaintiff’s requests for rezoning, or that there has been any arbitrary, oppressive or unreasonable application of the zoning ordinance to plaintiff’s property, and hence the judgment in his favor cannot be sustained. The judgment is reversed. Edmonds, J., Traynor, J., and Spence, J., concurred.