Lagiss v. Kraintz

California Court of Appeal Jun 18, 1951 No. Civ. 14620Published

Before: Dooling

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Holding. The court held that the petition failed to state a cause of action because it relied on speculative future conditions rather than existing facts to challenge the constitutionality of the zoning ordinance. The court further held that the petitioner failed to overcome the strong presumption of reasonableness afforded to comprehensive zoning ordinances.

Issues

Whether a demurrer is a proper pleading in a petition for a writ of mandate.
Whether allegations of future population growth and future freeway construction provide a legal basis to challenge the constitutionality of a zoning ordinance.
Whether the petition sufficiently alleged that the zoning ordinance was unreasonable as applied to the property's current state.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It must be unconstitutional as applied to existing facts in order to be held presently invalid.”

“Courts will not speculate on whether future conditions, when or if they come into being, may render the ordinance unconstitutional as applied to the changed conditions.”

“Nor does the fact that appellant’s property would be more valuable if zoned for business make the ordinance unconstitutional.”

[794]

DOOLING, J.

Appellant sought a writ of mandate in the superior court to compel respondent, building inspector of Contra Costa County, to issue him a permit to construct a building, on property owned by him facing on Aealanes Road in that county, to be used for retail business purposes. A demurrer was sustained to his petition with leave to amend and, upon his failure to amend, the judgment was entered against him from which he appeals.

Appellant argues that there is no provision in our law for a demurrer to a petition for writ of mandate. Demurrers to such petitions are a commonplace in our procedure, are recognized as proper in original proceedings in the Supreme Court and District Courts of Appeal by rule 56(c) Rules on Appeal, and have the sanction of express judicial decision in

Matteson

Board of Education,

104 Cal.App. 647, 650 [286 P. 482].

The allegations of the petition show that appellant’s property is zoned as Transitional Residential Agricultural under the county zoning ordinance, which permits its use for single family dwellings, small farming or horticultural production. The number of persons whose day to day family maintenance needs could be readily and conveniently served by a retail business on plaintiff’s property is approximately 800, residing in approximately 202 homes, and within the immediate future it is reliably estimated that said population number will have increased to more than 2,000 persons. The nearest existing businesses supplying day to day needs of these persons are more than three miles away from said population with no public means of transportation thereto.

We pause to remark that the allegations of probable future changes contained in the petition, of which the allegation of the estimated future increase in population is an example, cannot be looked to as a legal ground for striking down the ordinance. It must be unconstitutional as applied to existing facts in order to be held presently invalid. Courts will not speculate on whether future conditions, when or if they come into being, may render the ordinance unconstitutional as applied to the changed conditions. If the conditions do so change petitioner will then have his remedy if the new conditions render the operation of the ordinance invalid as to him.

Lagiss v. Kraintz

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DOOLING, J.

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