Finstein v. County of San Bernardino

California Court of Appeal Jan 11, 1957 No. Civ. No. 5538Published

Before: Barnard

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Holding. The court held that a county zoning ordinance did not impliedly repeal a preexisting health ordinance, and that the health ordinance could be constitutionally enforced against a property owner even when a neighbor's subsequent development created a violation.

Issues

Whether a zoning ordinance impliedly repealed a preexisting health ordinance regarding the keeping of animals.
Whether the enforcement of a health ordinance against a nonconforming use is unconstitutional when the violation is created by the subsequent development of adjacent property.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It would be unreasonable to interpret a provision of a zoning ordinance as intended to repeal, by implication, an existing provision of a health ordinance, in the absence of a clear disclosure of such an intent.”

“It is well settled that an activity which is permitted by law may be constitutionally prohibited, in connection with zoning ordinances, because of the subsequent development of adjacent property.”

BARNARD, P. J. This is an appeal from a judgment denying an injunction. The facts are undisputed, and the question presented is whether the first sentence of section 8 of the San Bernardino County Health Code (Ordinance No. 527) is applicable to and enforceable against the plaintiff’s property.

Ordinance Number 527 was adopted in 1942 and section 8 reads as follows:

“Domestic animals. No person shall keep any animal, fowl, or bird, wild or domestic, other than cats, dogs, canaries or birds of psittaeinae family, within forty (40) feet of any school, church, hospital, public place or business, or any residence or dwelling house or other building used for the habitation of human beings, other than his own personal and private dwelling or residence. No such animal or fowl shall be kept or maintained in any yard, coop, or building which is in a foul or unsanitary condition. The provisions of this section shall not apply to accredited laboratories regulated by the State Department of Public Health.”

Since July 1, 1951, the plaintiff has been engaged in the business of raising chickens on his real property. His poultry buildings at the time they were constructed were more than 40 feet from any building used as a dwelling, other than his own residence. Subsequent to July 1, 1951, a neighbor constructed a residence on an adjoining property which was within 40 feet of the plaintiff’s poultry enclosure.

On July 9, 1951, the board of supervisors adopted Ordinance 678, a zoning ordinance, which became effective on August 8, 1951. Ordinance Number 678 established 11 zone districts and provided regulations therefor in the unincorporated area of San Bernardino County, and specifically repealed 18 prior ordinances by number. The Health Code (Ordinance 527) was not named as one of the ordinances being repealed. Section 8 of Ordinance Number 678 provided for one zone in which limited agricultural uses were permitted and one of the regulations therein reads:

“h. Buildings and enclosures for fowl or livestock, small or large, placed on any given parcel of land, shall be kept at least forty (40) feet from dwellings on the property and a minimum of one hundred (100) feet from any other place used for human habitation, public park, school or ‘R’ District. ’ ’

Plaintiff’s property would be subject to that regulation except that section 15.5 of that ordinance provides that non[551]

Finstein v. County of San Bernardino

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