Opinion
5-27-1953
McCARTHY et al. v. CITY OF MANHATTAN BEACH. * Civ. 19286.
Cosgrove, Cramer, Diether & Rindge, John N. Cramer, Leonard A. Diether, J. D. Barnum, Jr., Los Angeles, for appellants. Clyde Woodworth, City Atty., Manhattan Beach, and Dunlap, Holmes, Ross & Woodson, Pasadena, for respondent.
McCARTHY et al.
v.
CITY OF MANHATTAN BEACH.
May 27, 1953.
Rehearing Denied June 9, 1953.
Hearing Granted July 22, 1953.
Cosgrove, Cramer, Diether & Rindge, John N. Cramer, Leonard A. Diether, J. D. Barnum, Jr., Los Angeles, for appellants.
Clyde Woodworth, City Atty., Manhattan Beach, and Dunlap, Holmes, Ross & Woodson, Pasadena, for respondent.
WOOD, Justice.
Action for declaratory relief. Plaintiffs appeal from judgment in favor of defendant.
Plaintiffs are owners of approximately three-fifths of a mile of sandy beach frontage in the City of Manhattan Beach (hereinafter referred to as city). In 1941, the city adopted an ordinance (No. 502), section 10 of which is to the effect that said land could be used only for beach recreational activities and for the operation of beach facilities for such activities for an admission fee; that the only structures permitted thereon were lifeguard towers, open smooth wire fences and small signs. Plaintiffs have not used the property for such purposes and have not received any income therefrom, but they have paid taxes thereon ranging in amounts from approximately $4,200 in 1940 to approximately $9,000 in 1950. In 1950 plaintiffs made application to the city for a modification of the ordinance which would permit the construction of single residences on the property. The application was denied. In the first cause of action herein, the plaintiffs sought a declaration that section 10 of said ordinance, as applied to appellants' property, was unconstitutional in that it deprives them of their property without due process of law in violation of section 1 of the 14th amendment to the Constitution of the United States; it denies them the equal protection of the laws in violation of section 1 of said amendment; and it takes their property for public use without compensation. They also alleged that said section is unreasonable, arbitrary and discriminatory, and is an abuse of legislative discretion. In the second cause of action, they sought a declaration that the ordinance was invalid because it was not passed in good faith, but was passed pursuant to a scheme, conceived by the mayor and councilmen, to keep plaintiffs' property unimproved so that it could be used by the public for park purposes, and to depreciate its value so that it might be acquired by eminent domain for park purposes at the lowest possible amount of money.
The said property of plaintiffs extends from 1st Street, which is the south boundary of the city (and is also the north boundary of the City of Hermosa Beach) to 13th Street. The width of the strip of land varies from 174 feet to 186 feet. Its west boundary is the line of mean high tide of the Pacific Ocean. Its east boundary is the west side of the former right of way of the Pacific Electric Railway Company, which right of way is now a state park. That right of way is 50 feet wide. East of, and adjacent to, the right of way is a cement walk, 15 feet wide, which is referred to as 'The Strand.' East of the strand there are residential and business houses. The land, from east to west--that is facing oceanward from the strand, has a slope varying from 1 to 2 feet vertical in 10 feet horizontal. At the south end of the land, the strand is approximately 2 feet above the Pacific Electric right of way; and at 12th Street (near the north end of the land), the strand rises to an elevation of not less than 15 feet above the right of way.
The accompanying photograph (Exhibit 2) shows plaintiffs' property and adjacent and other nearby property. North is at the top of the photograph. The row of houses at the bottom of the photograph (extending north and south, nearest to the ocean) is in Hermosa and will be referred to as the Hermosa houses. The south boundary of plaintiffs' property (1st Street--the boundary between Manhattan and Hermosa) is at a point in the photograph about 4 houses north of the Hermosa houses. The north boundary of plaintiffs' property (13th Street) is at a point about 5 houses north of the pier (the south pier). NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
In 1923, the city council passed an ordinance (No. 249), dividing the city into an industrial district and a residential district. Under that ordinance plaintiffs' land was in the residential district.
In 1924, the city, claiming title to said land by reason of alleged dedication of the land for public use by the subdividers, commenced an action to quiet title. In 1935, the superior court rendered judgment therein against the city, quieting title in the predecessors in interest of the present plaintiffs. On February 15, 1938, the judgment was affirmed by the Supreme Court. City of Manhattan Beach v. Cortelyou, 10 Cal.2d 653, 76 P.2d 483.
In 1929, while the quiet title action was pending, the council passed an ordinance (No. 337--amending the 1923 ordinance) which provided that no building should be erected westerly of the right of way, except a one-story one-family dwelling house with garage.
On March 17, 1938, about one month after the decision of the Supreme Court, the city passed a resolution to the effect that the withdrawal of said property (plaintiffs') from use as a public beach would be a great hardship to the public generally; the property should be acquired by the public for continued use as a public beach and particularly at a time when no structures had been erected thereon; the city did not have sufficient funds with which to acquire the property; and the city recommended to the county and the state that steps be taken looking to the acquisition of the property at the earliest possible moment in order to minimize the cost of such acquisition and to continue the use of the property as a public beach.
Thereafter, over a period of several years, the plaintiffs and defendant cooperated in various unsuccessful efforts to cause the property to be acquired for public use by the city or county or state.
In July, 1938, the mayor and the city attorney told Mr. McCarthy that they did not want appellants to sell the property or improve it because that would increase its value and the city wanted to acquire it within its means.
On July 21, 1938, the city council passed a resolution which recited that: The city did not have adequate funds for the acquisition of said property; it is deemed essential that said property 'should nevertheless be preserved for public use'; that the board of supervisors of the county give immediate consideration to the matter of leasing the property from appellants.
On July 20, 1939, the city council passed a resolution instructing the city attorney to attend a meeting of the state park commission and request it to make arrangements for the preservation of the property for public use.
On July 25, 1939, pursuant to instructions from the city council, the city attorney sent a letter to the governor requesting that in the event that he called a special session of the Legislature he include in the call the consideration of an act which would allocate money for the acquisition of the property. In that letter it was stated that unless something is done the appellants proposed to sell the property to various persons, and if that should be done the cost of acquisition would be materially increased since the property was not improved.
On February 1, 1940, the council instructed the city attorney to attend a session of the Legislature for the purpose of ascertaining the progress of legislation regarding the allocation of money for acquiring the property.
On June 24, 1940, Mr. McCarthy sent a letter to the mayor stating that, upon assurance from the city officials that arrangements were being made to acquire the property, he had delayed putting the property on the market; he was arranging to enclose the property and charge admission for the use of it; he had cooperated fully in an effort to make it possible for the city to acquire the property but since it apparently was unable to do so, he had no alternative except to secure as much revenue from the property as he could in order to pay the taxes.
On July 1, 1940, the city passed an ordinance which made it unlawful anyone to construct a barbed wire fence in the city without first obtaining written permission from the council.
On August 12, 1940, Mr. McCarthy sent a letter to the council stating that he understood the property was zoned for residential purposes; that under existing conditions it could not be sold or subdivided for such purposes and consequently he was paying taxes on property limited to use, by the zoning ordinance, for which it could not be utilized profitably; and he requested that the city rezone the property for business purposes. On August 22, 1940, the council denied the request.
On June 26, 1941, as above stated, the council passed said zoning ordinance No. 502, which is the subject of this action.
On March 1, 1945, the council passed a resolution which stated that: The city is without adequate funds with which to acquire the property; at the present time no improvements exist upon the property, and good policy dictates 'that now is the time during which the same should be acquired by and for the public'; the board of supervisors is requested to give its earliest consideration to the acquisition of the property to the end that it may be preserved for public use.
On September 8, 1948, the state commenced an action to condemn the property for park purposes. The action has been at issue since November, 1949, but it has not been set for trial.
On November 15, 1950, appellants made the application, above referred to, for a modification of ordinance No. 502, which would permit the construction of single residences on the property. The application was referred to the city planning commission and, after hearings, the application was denied by the commission on January 10, 1951. On March 6, 1951, the council denied said application.
The court found, in part, that: The property is subject, from time to time, to erosion and replacement by reason of storms and wave action of the ocean; any residences which could be constructed upon said property would necessarily be erected on pilings, and that reasonable minds might differ as to the safety of residence properties so constructed; the construction of residence properties on pilings and, subject to erosion and replacement by the waves of the ocean, might create problems by reason of possible uses of the areas underneath the residences for immoral purposes; one of the principal characteristics of the city is that it is a beach city bordering upon the Pacific Ocean; said property has been suitable, at all times since the adoption of said ordinance, for use and has been used by the residents of the city and the public generally for beach recreation purposes; it is not true that the city, through its mayor and its councilmen, or otherwise, conceived any scheme designed to accomplish the keeping of the property unimproved so that it could be used by the city and visitors to the city as a beach recreation area; it is not true that the city conceived any scheme to depreciate the value of the property so as to enable public authorities to acquire the property for the lowest possible amount of money. The court also found that reasonable minds might reasonably differ, and in 1941 might have reasonably differed as to the following matters: Whether the property is or was suitable for residential or commercial development; whether the city would be subjected to liability by reason of the necessity of employing lifeguards, wrecking crews and salvage employees to protect the property and installations thereon from the ravages of high tides and storms; the propriety of the enactment of said section 10; and the proper classification of the property as being within a beach recreation district.
Ordinance 502 purported to be a citywide zoning plan. It provided for 10 zoning districts in the city. The 4 districts which are material here are: R-2, for two-family residences; R-3, for limited multiple family residences; B-1, a beach recreation district; and C-1, for retail commercial purposes. All the property east of and next to the strand, facing oceanward, was in zone R-2, R-3 or C-1. The property west of the strand was in zone B-1. That property consisted of appellants' property, the beach frontage in the city which is north of plaintiffs' property, and the Pacific Electric right of way. The beach frontage north of plaintiffs' property was acquired by the state as a state park prior to the passage of said ordinance 502. The Pacific Electric right of way also was acquired by the state as a state park (in 1948). At the time this action was commenced, the only privately owned property in zone B-1 (beach recreation district) was appellants' property.
Section 1 of said ordinance 502 provides: 'In order to provide the economic and social advantages resulting from an orderly planned use of land resources and to conserve and promote the public health, safety and general welfare, there is hereby adopted and established an Official Land Use Plan for the City of Manhattan Beach. * * *'
Appellants contend in effect that the evidence does not support the material findings; that the evidence demonstrates that said section 10 has no substantial relation to public objects which government may legally accomplish; and said section is arbitrary and unreasonable, and was not designed to accomplish a legitimate public purpose.
It was stipulated that Col. Leeds, who was called as a witness by appellants, was eminently qualified as a civil and consulting engineer. He testified that he had made a study of appellants' property; that as a former United States district engineer in this area and a former State Sea Coast engineer he had a degree of familiarity with the Southern California coast, and with Coast and Geodetic Survey charts; he had examined profile maps made by the county surveyor of the area immediately landward and seaward from the shoreline--showing an elevation above and below the shoreline at intervals of 200 or 500 feet; he had examined the two aerial photographs of appellants' property; as Coast engineer he had observed property that had been damaged as a result of action of the sea; he had observed the conditions at Redondo Beach in recent years where structures on the shore had been damaged. He was asked the following question: 'Assume * * * that the easterly 35 feet of plaintiffs' property is to be devoted for a street * * * and that plaintiffs' property is to be subdivided into lots approximately 30 feet in width, and each of the lots would face on the street * * * just mentioned; in your opinion, can houses be constructed upon said lots which would comply with the provisions of the zoning ordinance * * * 502 * * * on said lots safely?' He replied, 'Yes.' He testified that his answer pertained to construction of such a house as of the date of adopting the ordinance in 1941, and at all times thereafter up to the present. He also testified that he would place the structure on concrete or steel piles, the top of which would be at an elevation of approximately 20 feet above mean lower low water, and in his opinion, the top of the foundation could be placed 'somewhat lower as a matter of safety'; he prepared a diagram (Exhibit 62) which is entitled 'Representative Profile Across McCarthy Property'--and also recites 'Showing Possible Development'; the diagram sets off 35 feet (next to the Pacific Electric right of way) to be dedicated for public use as a road; then it sets off 75 feet (next to the road) as an assumed suitable space on which to construct a house--with a 1-foot setback from the road--which would leave (on the average at each lot) approximately a minimum of 60 feet between the house and mean high tide; on some of the wider lots there would be 6 or 7 feet more between the houses and mean high tide; the approximate elevation of the top of the piling above mean lower low water would be between 16 and 17 feet; that such elevation would be 12.4 feet above mean high tide; if the house extended 75 feet from the road, the top of the piling at that point (75 feet from the road) would be on the average about 12 feet above the sand; that, in his opinion, if a house were constructed as indicated on the diagram, it could be constructed without fear of damage from the ocean. On cross-examination, he testified that he did not know that on occasions the Pacific Electric right of way at Manhattan Beach had been under water; he did not know that water came up over the strand in 1938; he had not made any investigation as to whether the city would approve the 35-foot road; he had not seen a subdivision plan for the property; in forming his opinion regarding the safety of constructing houses on appellants' property, he considered the presence of houses at Hermosa Beach, just south of the southerly limits of Manhattan Beach (as shown on the aerial photographs, Exhibits 1 and 2); the front of the houses that he would build on appellants' property would be on a line, which if extended southerly into Hermosa Beach, would be westerly of the front of said houses in Hermosa Beach; the line of mean high tide is 4.6 feet above mean lower low tide; the highest estimated possible tide in Southern California is 8 feet above mean lower low tide; a tide is measured as a level surface,--not as wave or wind action might send the water farther up on the beach; the height to which water is projected shoreward depends upon wave and wind action--ground swells are a form of wave; damage to piers and structures on beaches is usually caused by ground swells, which are usually produced by distant storms or submarine earthquakes; he would construct the building on pilings driven about 10 feet below lower low water, so that if an unanticipated storm should occur, it could gouge out several feet of the beach and the house would still stand and be safe; succeeding lesser waves will soon restore the gouged out places; the profiles of the beach at Hermosa are somewhat different from those in Manhattan; the attack of waves, wind or ground swells upon the shoreline is seriously influenced by the underwater configuration of the earth; in front of the Manhattan-Hermosa area there is a ridge, and therefore the severest attacks do not occur there; there have been very destructive waves at Redondo; how far a wave would extend shoreward, above the 8-foot (possible) high tide, depends upon many things, including the contour of the beach; the contour is normally a good indication of how far the waves have gone; the crest of the beach is normally around 12 to 15 feet. He was asked the following question: 'Would you feel, Colonel, that intelligent and reasonable minds might reasonably differ as to the possible danger of construction of residences in accordance with the scheme indicated on Exhibit 62?' He replied: 'Yes, I think you would find difficulty in getting all engineers to agree on one solution as being the only solution. It would depend on the degree of safety that you wanted, and various other factors. Only a very, very foolish engineer claims to be infallible.'
Mr. Flanagan, a building inspector and secretary of the planning commission of Manhattan Beach, testified that he had been an employee of that city since 1937; there have been some heavy storms at the beach; on one occasion a fishing barge drifted onto the beach; in a heavy storm he has seen the breakers come over the Pacific Electric right of way or splash over it.
Mr. Sights, who is and has been for 17 years chief of police at Manhattan Beach, testified that on two or three occasions he has seen water against the westerly edge of the Pacific Electric right of way--in the areas near 1st, 5th and 9th Streets; one of the occasions was about 17 years ago, when a barge was washed ashore on 1st Street.
It was stipulated that the judge might view the property and that he might consider as evidence everything he saw in viewing the premises. The judge viewed the premises in the presence of an attorney for appellants, an attorney for respondent, and the clerk of the court. Thereafter, the judge made a statement in open court regarding the observations he had made. Among other things, he said that the westerly side of the proposed 35-foot road (north of the pier in the vicinity of a row of sand dunes) is at least 12 feet lower than the general level of the Pacific Electric right of way; the westerly side of the proposed road is obviously subject to flooding at extremely high tides or during storms; about 500 feet south of the pier, the distance from the westerly side of the proposed road to the line of kelp and debris is about 75 feet, and the area within that distance is sand and generally level with a gentle slope seaward; from 6th Street to the south boundary of appellants' property there is an outcropping of soil; on the seaward side of the houses in Hermosa Beach, shown in the foreground of the photographs in evidence, there is a 20-foot cement walk; adjoining the walk there is a concrete wall, the top of which is level with the walk; the top of the walk is about 2 feet above the sand to the west of it; the distance from the wall to the break of the beach is about 65 feet; the front line of the houses in Hermosa, if continued northward, would be about 12 feet west of the westerly side of the proposed 35-foot roadway; the houses that might be built on plaintiffs' property would extend seaward of that line to the extent that appellants' houses would exceed 12 feet; if the proposed houses were built on plaintiffs' property westerly of the proposed 35-foot road, they would be right on the beach and unless they were protected by an adequate seawall they would be subject to a constant hazard of destruction by the sea. It may be noted that the judge's statement with reference to the necessity for 'an adequate sea wall' was not consistent with the finding that houses would be built on piling, as Colonel Leeds testified. Also, as respects the sand beaches of Southern California, it is a matter of common knowledge that piers and other structures built upon piling, in areas washed by the waves, do not have the effect of eroding or washing away the sand, and endure indefinitely.
Principles of law applicable in cases involving questions as to validity of zoning ordinances are stated in Clemons v. City of Los Angeles, 36 Cal.2d 95, at pages 98 and 99, 222 P.2d 439. Generally stated some of those principles are (1) a zoning ordinance enacted pursuant to a comprehensive plan, when reasonable and not arbitrary, will be sustained as a proper exercise of police power; (2) every intendment is in favor of its validity, and a court will not, except when the limitation is clearly arbitrary, interfere with the legislative discretion; (3) it is presumed that the ordinance is adapted to promote the public health, safety, morals, and the general welfare; and (4) a court may differ with the legislative body as to the propriety of enacting the ordinance, but if the question is one upon which reasonable minds might differ, the court will not interfere with the legislative body's determination of policy.
It appears that from 1923 to June 26, 1941 (when ordinance No. 502 was passed), the property was zoned as residential property; that on August 12, 1940 (while it was zoned as residential property), Mr. McCarthy requested that it be zoned for business purposes (the request was denied); and that on November 15, 1950 (while the property was zoned for beach recreation activities under ordinance 502), he requested that it be rezoned for residential purposes (the request was denied).
It also appears that the city, after it had failed in 14 years of litigation to quiet title in itself, and it being financially unable to buy the property, recommended that the county or state buy it so that it might continue to be used as a public beach; and that the city, after it had tried unsuccessfully for approximately three years (after the Supreme Court decision) to cause the county or state to buy the property, and it being unable to buy the property, passed ordinance 502 which in practical effect has caused the property to remain available for public use without requiring the city, county or state to expend any money therefor; and to remain without income to plaintiffs, but subject to heavy taxes--about $9,000 per year.
The engineering expert, called by appellants, testified to the effect that houses built upon pilings in a specified manner on appellants' property would be safe. That testimony was not contradicted by an engineering or construction expert. Even though the trial judge viewed the property, pursuant to stipulation, his conclusions as to tide, wave or wind action, based upon his observations of the property during a time of calm as distinguished from a time of storm, would not be evidence. The trial judge, in stating his observations, said that the houses would be subject to a constant hazard of destruction by the sea. He also stated in effect that during storms the houses would be within the area affected by the storms. In Fendley v. City of Anaheim, 110 Cal.App. 731, 294 P. 769, it was claimed that a power plant of defendant jarred and shook plaintiffs' residence and thereby caused damage. The judge therein viewed the premises in the daytime. The reviewing court said, 110 Cal.App. at page 736, 294 P. at page 771, that no observation was made by the trial court 'at nighttime when most of the discomforts complained of appeared. We are of the opinion that under such circumstances the inspection of the premises by the court cannot add sufficient weight to sustain the questioned finding [that the operation of the plant caused no discomfort to plaintiffs].' In Wall v. United States Mining Co., C.C. 232 F. 613, it was held that where the factual issue is a matter for expert testimony, the impressions obtained by a trial judge as to that issue, in viewing the premises, should not be considered as against the opinion of an expert. The observations of the trial judge herein as to the location and surface conditions of appellants' property and nearby property in Manhattan and Hermosa could be considered as evidence to aid the judge in understanding the evidence presented in the courtroom. The conclusions of the trial judge, based upon his observations of the premises, regarding the safety of houses constructed upon pilings, would not be controlling as against the opinion of the expert. The trial judge, however, was not required to find in accordance with the opinion of the expert. The finding of the court was contrary to that opinion. As above stated, there was no other testimony of an engineering or construction expert. The question therefore arises as to what the basis was for the finding that reasonable minds might differ as to the safety of houses constructed upon pilings. A statement of the judge, made during the trial, indicates that he based the finding, in part at least, upon his observations of the premises. He said: 'I have an unusually high regard for Colonel Leeds and I know him to be an extremely well-qualified engineer, but I also have viewed the property, and what I have observed is evidence, and I think that that is a question upon which reasonable minds might differ.' As above stated, the judge's conclusions as to safety, based upon his observations, were not evidence; and his opinion as to safety, based upon his observations, was not controlling as against the opinion of the expert. It might be that the judge based the finding in part upon the answer of the expert to the question by defense counsel as to whether he felt that 'reasonable minds might reasonably differ as to the possible danger of construction of residences in accordance with the scheme indicated on Exhibit 62?' That answer was, in part, 'Yes, I think you would find difficulty in getting all engineers to agree on one solution as being the only solution. It would depend on the degree of safety that you wanted, and various other factors.' That was not an answer that reasonable minds might reasonably differ as to the safety of houses built on pilings--it was an answer that such minds might reasonably differ as to the safety of houses built in accordance with the scheme indicated on Exhibit 62. As indicated by the answer, it might well be that engineers would not agree as to the safety of the one proposed solution,--and that a certain proposed solution might cause differences in opinion as to the degree of safety. The fact that engineers might not agree as to the safety of a proposed plan, such as the one indicated on Exhibit 62, would not signify that engineers would differ in opinion as to the safety of houses built in accordance with other plans, such as higher, stronger, or differently arranged pilings. The said answer of the expert was not a sufficient basis for the finding that reasonable minds might differ as to the safety of houses built on pilings. A question remains as to whether that finding was supported by the presumption that section 10 of the ordinance was adapted or suited to promoting public safety. Various circumstances here, when considered together, show that the presumption alone was not sufficient to support the finding. Some of those circumstances are: (1) The testimony of the expert was contrary to the presumption,--and the judge did not reject the expert's testimony on the ground that he considered the expert was not qualified, but he rejected it because he preferred to base his opinion, as to safety of houses built on pilings, upon his observations of the premises--which opinion, as above stated, was not evidence. (2) In 1923, the city zoned the property for residences and it remained zoned for that purpose for 18 years--until 1941 when the present ordinance was enacted. (3) There was no evidence that there was any change in the physical condition of the property or any disadvantageous change in the action of the ocean. (4) The pictures of the property, received in evidence as Exhibits 1 and 2, show that on an easement across appellants' property for roadway purposes (where the pier is) there are houses adjoining each side of the pier, which houses presumably were built by the city. (5) Along the ocean front in Hermosa Beach, a few feet from the south boundary of appellants' property, there is a row of dwelling houses which is approximately in the same position, with reference to distance from mean high tide, as the row of proposed houses on appellants' property would be from that tide--those houses in Hermosa are not built on pilings but, at a point 20 feet oceanward from the houses (as hereinabove described), there is a cement wall which is about 2 feet higher than the sand. (The pictures indicate that those houses have been there many years.) (6) After the city had failed to quiet title in itself, following 14 years of litigation, and after it had failed in 3 additional years of negotiating for condemnation of the property, it enacted section 10 (prohibiting residences thereon) allegedly on the basis of promoting public safety, although the property had been zoned for residences during all the period of the litigation and negotiations. In summary, it appears that the testimony of the expert that houses built upon pilings would be safe was uncontradicted, notwithstanding the observations of the property by the judge; that the expert did not say that reasonable minds might differ as to the safety of houses built upon pilings, irrespective of height or kind of pilings; and that the presumption that section 10 was adapted to promoting public safety should not prevail as against the various circumstances herein which indicate that the section was not so adapted. The finding that reasonable minds might differ as to the safety of residences constructed on pilings is not supported by the evidence.
Appellants also contend that another finding was not supported by the evidence. That finding is that the construction of houses on pilings might create problems by the possible uses of the areas under the residences for immoral purposes. Counsel for respondent (city) asked the chief of police if, in his opinion, he would have encountered any police problems if the McCarthy property had been improved by constructing residences on pilings. Appellants' objection to that question, upon the ground that it called for a conclusion, was overruled. The witness then said that he definitely believed that such improvement would cause a police problem because along other beach frontages where homes were built on pilings they 'had trouble with juveniles, sex perverts; we have had that under our piers a number of times.' On cross-examination, he testified to the effect that he was not familiar with any such police problem in other beach cities involving houses on pilings. Such opinion evidence as to public morals was not sufficient to warrant the enactment of section 10 as a measure that would promote public morals. The fact that it is easier to police the vacant property than it is to police the improved property is not a proper basis for restricting the appellants in the use of their property. The said finding to the effect that the construction of houses on pilings might create police problems is not supported by the evidence.
As above stated, appellants' property could have been used for residential purposes prior to the enactment of said section 10. The city recognized that the property was of high value,--a value which the city, itself, was not able to pay in order to acquire the property for public use. Appellants were and are required to pay high taxes on the property. Said section 10 rendered the property of comparatively little value for the limited uses designated in the section. In practical effect, as above stated, the enactment of section 10 accomplished for the city and the public, without paying any compensation, substantially the same result that would have been accomplished by eminent domain. In Arverne Bay Const. Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 587, 592, 117 A.L.R. 1110, the court said: 'An ordinance which permanently so restricts the use of property that it cannot be used for any reasonable purpose goes, it is plain, beyond regulation, and must be recognized as a taking of the property. The only substantial difference, in such case, between restriction and actual taking, is that the restriction leaves the owner subject to the burden of payment of taxation, while outright confiscation would relieve him of that burden.' In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322, 325, Justice Holmes said: 'Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized some values * * * must yield to the police power. But obviously the implied limitation must have its limits or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts.' (Italics added.) In Householder v. Town of Grand Island, Sup., 114 N.Y.S.2d 852, an ordinance required a 90-foot setback from a street, and as the result thereof all the owner's land except a strip 1 foot wide, at one end of his property, and 8 feet wide at the other end, was taken. The court said, 114 N.Y.S.2d at page 855: 'Such an ordinance is confiscatory and unenforcible. It is an attempt to accomplish by so called 'set back ordinance' without any compensation what can legally be done, if at all, only by the exercise of the power of eminent domain.' In Skalko v. City of Sunnyvale, 14 Cal.2d 213, at page 216, 93 P.2d 93, at page 94, it was said: 'Legislatures may not, under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities.' In practical effect section 10 of the ordinance, as applied to appellants' property, is confiscatory and constitutes a taking of plaintiffs' property for public use without compensation and without due process of law. Under the evidence here, said section, as applied to plaintiffs' property, is unconstitutional and invalid.
In view of our conclusion that section 10 of the ordinance is invalid, as applied to appellants' property, it is not necessary to consider claimed errors in the rejection of evidence.
The judgment is reversed.
SHINN, P. J., and VALLEE, J., concur. --------------- * Subsequent opinion 264 P.2d 932. 1 'Section 10. B-1 Beach Recreation District 'A. Land Uses Permitted '1--The following beach recreation activities: swimming, surf-fishing and athletics including operation of beach facilities for the above activities for an admission fee; '2--Rental of the following beach equipment: back-rests, chairs, benches, picnic tables and stoves, unbrellas, wind screens, surf-rafts, surf-boards, surfing bags, paddle-boards, kayaks, canoes, and other small boats. 'B. Other Uses 'No use other than those specifically mentioned in this section as permitted uses or those determined by action of the Commission * * * to be not more obnoxious or detrimental to the welfare of the community, shall be permitted * * *. 'C. Structures Permitted '1--No buildings, structures, walls, or fences shall be erected in the B-1 District, except life guard towers and open smooth wire fences neither of which shall have a height greater than four (4) feet above the grade of the nearest portion of the strand. '2--No sign shall be permitted or displayed in the B-1 District other than directional signs as specified below * * *.'