In Re White

California Supreme Court Feb 27, 1925 No. Docket No. Crim. 2707.Published

Before: Lennon

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Holding. The court held that the zoning ordinance was invalid because the allocation of land for business use was so disproportionately small that it constituted an unreasonable restriction, effectively granting a monopoly to existing businesses.

Issues

Whether the establishment of strictly residential districts is constitutional.
Whether the specific zoning ordinance in question is an unreasonable and invalid exercise of the police power.

Disposition. Petitioner discharged

Quotations verified verbatim against the opinion

“the area allotted by the ordinance in question for business purposes in the town of Atherton is so small as to be an unreasonable restriction.”

“Inasmuch as the vice of the ordinance permeates the entire scheme thereof, it must be held that the entire ordinance is void.”

“The ordinance being invalid, it follows that petitioner’s conviction and subsequent imprisonment was unlawful and he must be released from custody.”

LENNON, J.

The petitioner herein seeks his release on

habeas corpus

after judgment of conviction rendered in the recorder’s court of the town of Atherton, county of San Mateo, upon a charge of misdemeanor, to wit, violation of Ordinance 23 of said town.

Succinctly stated, the undisputed facts of the case, shown by the return to the writ and the petition for the writ, employed as a traverse, and the stipulations of the respective parties to the proceedings, are these:

Said Ordinance 23 is a zoning ordinance which divides the town of Atherton into two zones designated as “The residence district” and “The unrestricted district.” Section 4 (a) of said ordinance provides that in the “unrestricted district,” “the premises therein and the buildings now or hereafter to be placed thereon may be devoted to any lawful use, but subject to the ordinance of this municipality and to the regulations of its Board of Health.” Section 4 (b) thereof provides that in the residence district “no piece,

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parcel, lot or premises, and no building thereon, shall be used, and no building shall be constructed or altered thereon which is arranged, intended or designed to be used for any of the following purposes, viz.: store, shop, retail or wholesale business house, factory, hotel, boarding house, hospital, private school, sanitarium, public garage, undertaking parlor, gasoline or oil station, amusement enterprise for profit, or other structure for the conduct therein of trade or business.”

This ordinance was enacted on the twenty-first day of November, 1923, after proceedings duly and regularly had and taken, under and in pursuance of an act of the legislature entitled, “An act to provide for the establishment within municipalities of districts or zones within which the use of property, height of improvements, and requisite open spaces for light and ventilation of such buildings may be regulated by ordinance.” (Stats. 1917, p. 1419.) Thereafter, while said ordinance was in operation, the petitioner herein, built a small structure to be used as a real estate office in the residence district of the town of Atherton, as said residence district is defined by said ordinance, and proceeded to transact business therein.

In Re White

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LENNON, J.

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