IN THE SUPREME COURT OF CALIFORNIA
ADRIAN HERNANDEZ et al.,
Plaintiffs
and
Appellants,
S143287
v.
) Ct.App.
5
F047536
CITY OF HANFORD et al.,
Kings
County
Defendants and Respondents. )
Super. Ct. No. 03C0296
This case involves a constitutional challenge to a zoning ordinance enacted
by the City of Hanford in 2003. In order to protect the economic viability of
Hanford’s downtown commercial district — a prominent feature of which is a
large number of regionally well-regarded retail furniture stores — the challenged
ordinance generally prohibits the sale of furniture in another commercial district in
Hanford (currently designated the Planned Commercial or PC district) that
contains a large shopping mall in which several department stores as well as other
retail stores are located. At the same time, the ordinance creates a limited
exception to the general prohibition on the sale of furniture in the PC district,
permitting large department stores (those with 50,000 or more square feet of floor
space) located within that district to sell furniture within a specifically prescribed
area (occupying no more than 2,500 square feet of floor space) within the
department store.
1
The owners of a “stand-alone” home furnishings and mattress store located
within the PC district, who wished to sell bedroom furniture along with mattresses
and home accessories (such as lamps and carpets) in their store, brought this action
contesting the validity of the foregoing provisions of the zoning ordinance. The
trial court rejected the constitutional challenge, but the Court of Appeal disagreed
with the trial court’s determination. The Court of Appeal concluded that although
the ordinance’s general prohibition of the sale of furniture in the PC district was
reasonably related to a legitimate governmental interest — the preservation of the
economic viability of the downtown commercial district — the ordinance’s
exception permitting limited furniture sales only by large department stores in the
PC district violated equal protection principles by drawing an unwarranted
distinction between large department stores and other retail stores located within
the PC district. The appellate court reasoned that “when all retailers limit the
furniture display space in compliance with the ordinance to the permitted 2,500
square feet, the difference in total floor space between the retailers is largely
irrelevant. Thus, the disparate treatment of these similarly situated retailers based
on square footage is not rationally related to the purpose behind the ordinance and
is unconstitutional as a violation of equal protection.” We granted the city’s
petition for review to consider the validity of the Court of Appeal’s determination
that the ordinance is unconstitutional.
For the reasons discussed below, we conclude that the Court of Appeal
erred in finding the ordinance unconstitutional. As we shall explain, the appellate
court’s analysis fails adequately to take into account the two legitimate purposes
underlying the ordinance in question: (a) the objective of protecting and
preserving the economic viability of the city’s downtown commercial district by
generally prohibiting within the PC district a particular retail activity — the sale of
furniture — that is a prominent feature of the downtown commercial district, and
2
(b) the objective of attracting to, and retaining within, the city’s PC district the
type of large department stores (which typically carry furniture) that the city views
as essential to the economic viability of the PC district. Restricting the
ordinance’s limited exception for the sale of furniture within the PC district to
sales by large department stores — and only such stores — is rationally related to
the second of these legislative purposes served by the ordinance.
Accordingly, we conclude that the decision rendered by the Court of
Appeal, invalidating the zoning ordinance here at issue, must be reversed.
I
In 1989, the City of Hanford amended its general plan to provide for a new
commercial district in the vicinity of 12th Avenue and Lacey Boulevard. This
new district originally was designated the Regional Commercial district but later
was renamed the Planned Commercial or PC district. The district encompassed
several hundred acres of land and was intended to accommodate the location of
malls, large “big box” stores, and other retail uses.
At trial, Jim Beath, the city’s community development director, testified
regarding the background of the city’s adoption of the new district in 1989.
(Beath had been the city’s community development director in 1989 and continued
to occupy that position at the time of trial in 2005.) Beath explained that when the
city was considering the creation of the new district in 1989, it was concerned that
the extent of anticipated commercial development in the proposed district might
well have a negative effect on the city’s downtown commercial district. In light of
that concern, the city council appointed the Retail Strategy Development
Committee (the Committee) “made up of people from the mall area as well as the
downtown district and other citizens.” The Committee was asked to propose land
use rules for the new district that would “provide for the large box and other kinds
3
of retail use that the City . . . had grown to need and yet still make sure that [the
new district] didn’t have a negative impact on the downtown district.”
The Committee ultimately recommended that certain designated uses
generally not be permitted in the new district, and Beath testified that those uses
“were ones that were already established in the downtown district that they didn’t
want to see removed from the downtown district and relocate[d] out at the planned
commercial district, and those were car dealerships, banks, professional offices,
and furniture stores.” In establishing the new district, the city council limited the
uses that were to be permitted in that district in line with the Committee’s
recommendations.
Accordingly, as relevant here, the 1989 ordinance included department
stores and the sale of home furnishings within the list of permitted uses within the
new district, but did not include furniture stores or the sale of furniture as a
permitted use. The 1989 ordinance, however, did not specifically define
“department store” or “home furnishings,” and did not explicitly state whether
department stores located within the new district would or would not be permitted
to sell furniture. (As we shall see, from the outset the department stores that were
built and operated within the new district did sell some types of furniture, but the
validity of this practice of the department stores under the terms of the 1989
ordinance apparently never was challenged or judicially resolved prior to the
controversy that led to the enactment of the 2003 amendment here at issue.)
In the fall of 2002, more than a decade after establishment of the PC
district, plaintiffs Adrian and Tracy Hernandez leased space in a building located
in the PC district with the intent to establish a new business at that location to be
called Country Hutch Home Furnishings and Mattress Gallery (hereafter Country
Hutch Home Furnishings). For more than 10 years preceding the time they
proposed to start this new business, plaintiffs had owned and operated a retail
4
furniture store, the Country Hutch, that was located in the city’s downtown
commercial district.1 In planning for the new store, plaintiffs intended to sell
mattresses, home accessories, and some bedroom furniture at their new location in
the PC district.
Prior to the opening of the new business, Tracy Hernandez met with Beath,
the city’s community development director, who informed her that under the
governing zoning ordinance the new store would not be permitted to sell furniture.
Although the then existing provisions governing the PC district did not contain
any specific definition of the term “home furnishings” — the sale of which was a
permitted use in the PC district — Beath testified that the city, as an administrative
matter, uniformly had interpreted “home furnishings” as used in the ordinance to
mean “accessories to furniture, . . . not furniture,” that is, objects such as “lamps,
wall hangings, mirrors, blinds, drapes, things of that sort.” Beath testified that he
informed Tracy Hernandez of that limitation well before the opening of the store.
In her testimony, Tracy Hernandez acknowledged that Beath had informed her that
the proposed store in the PC district could not sell furniture.
In November 2002, the city adopted a number of amendments to its general
plan and zoning ordinance, including a revision in the list of permitted uses in the
PC zone changing the term “home furnishings” to “home furnishing accessories
(not furniture).” Beath testified at trial that this amendment did not represent a
substantive change in the meaning of the term “home furnishings” or the manner
1
At trial, Tracy Hernandez referred only to her and her husband’s ownership
of one furniture store in downtown Hanford, the Country Hutch. Other documents
in the record indicate that in 2002 there were two furniture stores with similar
names — the Country Hutch and the Country Hutch Outlet — among the more
than one dozen retail furniture stores located in downtown Hanford. The record
does not indicate whether plaintiffs owned the Country Hutch Outlet as well as the
Country Hutch.
5
in which that term had been applied by city officials, but simply was intended “to
clarify it by adding the words ‘not furniture.’ ”
From November 2002 to January 2003, plaintiffs continued with their plans
to open and operate the Country Hutch Home Furnishings store in the PC district,
and in February 2003 the city issued a certificate of occupancy to plaintiffs stating
that the building in question could be used to sell “home furnishing accessories,”
but also specifying that this term excluded “all types of furniture.”2
After receiving the certificate of occupancy, plaintiffs opened the Country
Hutch Home Furnishings store. Soon thereafter a city inspector, citing plaintiffs
for violating the zoning ordinance by offering furniture for sale in their new store,
instructed them to remove all of the furniture from the store. Plaintiffs thereafter
sent a letter to the members of the Hanford City Council, complaining that the
zoning code was being applied in a discriminatory fashion because numerous
department stores in the PC district were selling furniture and had not been cited
by the city, while plaintiffs were cited for engaging in the same conduct.
On March 4, 2003, one week after receiving plaintiffs’ letter, the city council
held a “study session” to consider the issues raised by plaintiffs’ letter. Plaintiffs, as
well as representatives of the downtown furniture stores and representatives of the
PC district department stores, attended and participated in the study session. Prior to
2
The relevant condition of the certificate of occupancy stated in full:
“Subject to obtaining any and all required approvals from the City of Hanford, the
merchandise that may be sold at the site is limited to that merchandise identified in
Section 17.28.040 of the Hanford Municipal Code, a copy of which is attached
hereto. The term ‘Home Furnishing Accessories’ is defined as household
decorative items that accompany furniture in the decorating of room[s]. Examples
include, bedding (including mattresses and bed frames), mirrors, artwork and
similar accessory items. Excluded from the definition of ‘Home Furnishing
Accessories’ are all types of furniture.”
6
the March 4 session the city’s community development department, conducting a
survey of the merchandise offered for sale in the existing large department stores
located in the PC district, found that each of those stores currently was selling “some
type of furniture” — generally, either furniture that was “purchased in a box and
requires some assembly” or patio furniture.3 At the session, Beath informed the city
council that he believed it was advisable to consider revising the applicable zoning
ordinance to clarify whether, and to what extent, furniture could be sold in the PC
district, either by department stores or other retail stores. Representatives of the
downtown furniture stores maintained that the zoning ordinance’s general prohibition
on sales of furniture in the PC district was vital to the economic health of the city’s
downtown district and should be retained and uniformly enforced. A representative
of the mall maintained that the type of furniture currently sold in the existing
department stores in the PC district differed from the furniture sold in the downtown
furniture stores and should remain locally available through the department stores.
At the conclusion of the session, the council instructed the city staff to draft a
proposed revision of the ordinance to clarify its application, and in addition to inform
the department stores in the PC district that, pending the city’s consideration of
possible changes to the zoning ordinance, those stores would have to remove all
3
Specifically, the department’s survey found that (1) Wal-Mart carried a
variety of computer and entertainment centers, bookcases, tables, chairs, and patio
furniture, all of which “is purchased in a box and requires some assembly”;
(2) Home Depot and Sears carried only patio furniture; (3) Gottschalks carried
only mattresses with headboards and footboards, although at one time the store
also had sold chairs and sofas; and (4) Target, which was soon to open a store in
the PC district, “displays and sells similar boxed furniture items as Wal-Mart.”
The department’s report also stated that “[t]he PC zone allows warehouse
type stores such as Sam’s Club and Costco which sell furniture typically found in
a full scale furniture store.” The report did not indicate, however, whether any
warehouse-type store actually was located in the city’s PC zone at that time.
7
furniture from their display areas and refrain from selling any furniture (other than
outdoor or patio furniture).4
Pursuant to the city council’s direction, after the March 4 study session city
employees informed the department stores in the PC district that they were
required to remove all furniture (other than outdoor or patio furniture) from
display and to refrain from selling such furniture pending the city’s consideration
of changes to the applicable zoning ordinance. During the next four months, the
staff of the community development department, after soliciting input from the
owners and managers of all of the affected stores in the PC and downtown
commercial districts, submitted a series of proposed amendments relating to this
issue, in response to changing directives of the city council at monthly study
sessions that were held from April to July 2003. The various alternatives were
debated vigorously by the directly affected businesses, with representatives of the
downtown business district emphasizing the critical importance for the city’s
overall general welfare of preserving the economic viability of that district, and
representatives of the large department stores located in the PC district observing
that their stores had offered some furniture for sale for the past decade without
having a negative impact on Hanford’s downtown furniture stores,5 that virtually
all of their sister stores in other locations contained furniture departments, and that
the elimination of furniture departments in the department stores in Hanford could
4
At the March 4 session, the consensus of the council members was that the
existing provisions of the ordinance should not be interpreted to prohibit the sale
of outdoor or patio furniture.
5
The record indicates that the number of retail furniture stores in Hanford’s
downtown business district had increased from five stores in 1989 to 13 stores in
2003.
8
result in a substantial reduction of revenue for the city (by virtue of lost sales tax
receipts) as well as for the individual stores.
At one point during this process, a representative of the downtown furniture
stores stated that those stores would not object to an amendment to the PC zoning
provisions permitting department stores to continue selling ready-to-assemble
furniture in the PC district as the department stores had done in the past, so long as
a specific, mutually agreeable definition of ready-to-assemble furniture was
included within any such amendment. In response, the council directed the
department staff to attempt to draft an amendment that would include a workable
definition of ready-to-assemble furniture and that would permit such furniture to
be sold at stores within the PC district, but limiting such sales activity to 5 percent
of a store’s floor space. After both the city staff and the affected businesses had
devoted considerable time and effort to fashioning such a measure, however, it
was determined that a definition of ready-to-assemble furniture that could be sold
in the PC district could not be agreed upon by the affected parties, and that even if
a mutually agreeable definition could be fashioned, it would be extremely difficult
as a practical matter for city employees to enforce such a provision.6
6
In the process of attempting to arrive at a mutually agreeable definition of
ready-to-assemble furniture that could be sold in the PC district, the downtown
furniture stores expressed the view that any acceptable definition would have to
limit its reach to furniture that was constructed of specific kinds of material (“from
Melamine and particle board and does not include furniture with wood veneers or
high pressure laminates”). A letter subsequently submitted by the downtown
merchants stated that “[a]s we’ve examined the proposed 5% RTA [ready-to-
assemble] modification [of the ordinance], we find that a good working definition
of RTA would be hard to determine (since everyone defines it differently) and we
believe it would be nearly impossible to enforce.”
9
Ultimately, on July 15, 2003, the city council adopted the amendment to the
city zoning provisions relating to the sale of furniture in the PC district that is
challenged in this case, Hanford Ordinance 03-03 (Ordinance No. 03-03).
Section 1 of Ordinance No. 03-03 adds definitions of “department store,”
“furniture,” and “home furnishing accessories” to the general zoning provisions of
the Hanford Municipal Code. “Department store” is defined as a retail store of at
least 50,000 square feet “within which a variety of merchandise is displayed . . .
for sale in departments,” and the section further provides that a department store
within the PC district may display and sell furniture in only one location (and on
only one level within that location) having a total floor space of no more than
2,500 square feet. “Furniture” is defined as “the things placed in a room which
equip it for living,” but “[h]ome appliances, outdoor/patio furniture, wall cabinets,
garage storage units and home furnishing accessories as defined in this [s]ection”
are excluded from the definition of furniture for purposes of the zoning law.
“Home furnishing accessories,” in turn, are defined as “compl[e]mentary or
decorative items placed in a room to accentuate the furniture,” such as “curtains,
draperies, blinds, . . . mirrors, pictures, . . . rugs, vases, . . . floor lamps, [and] table
lamps,” but as not including furniture.
Section 2 of Ordinance No. 03-03 adds as permissible uses within the PC
district: “Department Stores” as defined in the ordinance, “Home Furnishing
Accessories” as defined in the ordinance, and “Stores, which sell mattresses and
metal bed frames with basic headboards and footboards that do not include
shelves, drawers or sitting areas.” Finally, section 3 of the ordinance adds a
paragraph to the PC zoning provisions that specifically states: “The sale of
furniture is prohibited in the PC zone district except by Department Stores in
10
accordance with the definition of Department Stores” as set forth in the
ordinance.7
7
Ordinance No. 03-03 reads in full:
“Section 1:
“Section 17.04.030 of Chapter 17.04 of Title 17 of the Hanford Municipal
Code is hereby amended to add the following definitions:
“ ‘Department Store’ means a retail store measuring 50,000 square feet or
more within the inside walls of such retail store, and within which a variety of
merchandise is displayed and arranged for sale in departments within the store.
Examples of types of department stores are: Wal-Mart, K-Mart, Costco, Sam’s
Club, Home Depot, Orchards, Target, Sears, Mervyn’s, Penny’s, Gottschalks and
Kohls. A department store located in the Planned Commercial District may sell
furniture in only one department in the department store and the furniture for sale
must be displayed in only one location in the department. The total floor space
area of the one location in the department where the furniture for sale is displayed
shall not be larger than 2,500 square feet and shall be limited to only one display
level.
“ ‘Furniture’ means the things placed in a room which equips it for living.
Home appliances, outdoor/patio furniture, wall cabinets, garage storage units and
home furnishing accessories as defined in this Section 17.04.030 are excluded
from the definition of furniture.
“ ‘Home Furnishing Accessories’ means compl[e]mentary or decorative
items placed in a room to accentuate the furniture. Examples of Home Furnishing
Accessories are: curtains, draperies, blinds, shutters, mirrors, pictures, clocks
(excluding grandfather or floor clocks), wall hangings, tapestries, carpet, rugs,
vases, baskets, statues, flowers, floor lamps, table lamps and pictures and other
similar items. Home Furnishing Accessories are not furniture.
“Section 2:
“Section 17.28.040 of Chapter 17.28 of Title 17 of the Hanford Municipal
Code is hereby amended to add the following use:
“Department Stores as defined in Section 17.04.030.
“Home Furnishing Accessories as defined in Section 17.04.030.
“Stores, which sell mattresses and metal bed frames with basic headboards
and footboards that do not include shelves, drawers or sitting areas.
“Section 3:
“Section 17.28.040 of Chapter 17.28 of Title 17 of the Hanford Municipal
Code is hereby amended to add paragraph 6 as follows:
“ ‘6. The sale of furniture is prohibited in the PC zone district except by
Department Stores in accordance with the definition of Department Stores set
(footnote continued on following page)
11
Accordingly, the ordinance in question generally prohibits the sale of
furniture in the PC district, but at the same time creates a limited exception
permitting a large department store within the PC district to display and sell
furniture within a single location in the store measuring no more than 2,500 square
feet.
Shortly after the ordinance was enacted, plaintiffs filed the present action
against the city, challenging the validity of the ordinance on a number of grounds.
Plaintiffs’ complaint contended that the ordinance was invalid (1) because it was
enacted for the primary purpose of regulating economic competition, and
(2) because it violated the equal protection clauses of the federal and state
Constitutions. After a bench trial, the trial court rejected plaintiffs’ contentions
and upheld the validity of the ordinance. With regard to plaintiffs’ initial claim,
the court concluded that the primary purpose of the ordinance was not the
impermissible purpose of restricting or eliminating competition, but instead the
valid objective of preserving the vitality of Hanford’s downtown district while not
discouraging large department stores from locating or remaining in the PC district.
With regard to plaintiffs’ equal protection claim, the court found that there was a
rational basis for the ordinance’s disparate treatment of large department stores
and smaller retail stores like those owned by plaintiffs, because the city’s
expressed interest in encouraging large department stores to locate and remain
within the PC district did not extend to smaller stores.
(footnote continued from preceding page)
forth in Section 17.04.030 of Chapter 17.04 of this Title 17.’
“Section 4:
“This ordinance shall take effect thirty (30) days after its passage, and shall
be published once in the Hanford Sentinel within fifteen (15) days after its
passage.”
12
On appeal, the Court of Appeal reversed the trial court’s decision.
Although the appellate court agreed with the trial court that the ordinance’s
general prohibition of the sale of furniture in the PC district was reasonably related
to the legitimate governmental purpose of preserving the character and vitality of
the city’s downtown commercial district, the Court of Appeal further held that
“with the blanket 2,500-square-foot restrictions on furniture in the PC zone, the
small retailer poses the same potential threat, if any, to the downtown merchants
as the larger store. Thus, limiting the furniture sales exception to stores with more
than 50,000 square feet is arbitrary. A rational relationship between the size
classification and the goal of protecting downtown simply does not exist.” In
rejecting the city’s contention that the ordinance’s disparate treatment between
large department stores and other stores was justified because “the department
store exception benefits the community by making the PC zone attractive to large
retailers,” the Court of Appeal stated simply that “it is not a detriment to have
smaller retailers, such as Country Hutch [Home Furnishings], in the PC zone.
Thus, the goal of promoting the PC zone does not validate the ordinance.”
We granted the city’s petition for review.
II
Before reaching the equal protection issue upon which the Court of Appeal
based its decision, we turn first to the more general (and more sweeping)
contention that plaintiffs raised below and upon which they continue to rely in this
court — that the zoning ordinance at issue is invalid because the “primary
purpose” of the ordinance’s general prohibition of the sale of furniture in the PC
district assertedly was to “regulat[e] economic competition.” Although neither the
trial court nor the Court of Appeal found the ordinance invalid on this basis, as we
shall see, plaintiffs’ claim that the city exceeded its authority under the police
power by enacting a zoning ordinance that regulates or restricts economic
13
competition apparently is based upon some ambiguous and at least potentially
misleading language that appears in a number of zoning decisions of the Courts of
Appeal. As we shall explain, despite some arguably ambiguous language the
decisions in these cases plainly do not support plaintiffs’ challenge to the validity
of the zoning ordinance here at issue, and we shall attempt to clarify the language
in question to avoid possible confusion in the future.
Van Sicklen v. Browne (1971) 15 Cal.App.3d 122 (Van Sicklen) is the
earliest in the series of relevant Court of Appeal decisions. In Van Sicklen, the
petitioner landowners applied for a conditional use permit to construct an
automobile service station, but the city denied the application on the ground,
among others, that a proliferation of service stations already existed in the area and
thus that there was no demonstrated need for an additional service station at that
location at that time. On appeal, the landowners claimed the city had denied the
use permit “for economic rather than planning considerations resulting in an
invalid attempt to regulate competition through zoning laws.” (15 Cal.App.3d at
p. 127.) In analyzing this contention, the court in Van Sicklen stated: “Although
cities may not use zoning powers to regulate economic competition [citing three
out-of-state decisions], it is also recognized that land use and planning decisions
cannot be made in any community without some impact on the economy of the
community. As stated in Metromedia, Inc. v. City of Pasadena [(1963)] 216
Cal.App.2d 270, 273, ‘Today, economic and aesthetic considerations together
constitute the nearly inseparable warp and woof of the fabric upon which the
modern city must design its future.’ Taking cognizance of this concept we
perceive that planning and zoning ordinances traditionally seek to maintain
property values, protect tax revenues, provide neighborhood social and economic
stability, attract business and industry and encourage conditions which make a
community a pleasant place to live and work. Whether these be classified as
14
‘planning considerations’ or ‘economic considerations,’ we hold that so long as
the primary purpose of the zoning ordinance is not to regulate economic
competition, but to subserve a valid objective pursuant to a city’s police powers,
such ordinance is not invalid even though it might have an indirect impact on
economic competition.” (Van Sicklen, supra, 15 Cal.App.3d at pp. 127-128.) The
court in Van Sicklen then went on to uphold the city’s denial of the use permit,
concluding that “[i]ntensity of land use is a well-recognized and valid city concern
and relates to both health and safety factors and to proper zoning practice” and
“encompasses within its purview the degree of saturation in a particular area of
land devoted to automobile service stations.” (Id. at p. 128.)
The passage from Van Sicklen quoted above correctly recognized many of
the numerous factors and interests, including economic considerations, that a
municipality properly may take into account in fashioning zoning ordinances and
making zoning decisions, and we agree with the court’s determination upholding
the particular zoning action challenged in that case. We believe, however, that
some of the language in the above quoted passage from Van Sicklen is at least
potentially misleading. First, the initial general statement that “cities may not use
zoning powers to regulate economic competition” (Van Sicklen, supra, 15
Cal.App.3d at p. 127) is quite clearly overbroad. As one leading zoning treatise
accurately observes: “[A]ll zoning has some impact on competition. [¶] The
simple division of the community into districts has an inherent and profound effect
on the real estate market, because some land is withdrawn from the commercial
market and placed in the residential market. . . . Some competitive impact results
from nearly every provision of the original zoning ordinance, and from each
amendment. Accordingly, competitive impact alone cannot invalidate a zoning
ordinance. A zoning ordinance which serves some established purpose of zoning
is not necessarily invalid simply because it has the additional effect of limiting
15
competition.” (1 Anderson’s American Law of Zoning (4th ed. 1996) § 7.28,
p. 807; see, e.g., Boone v. Redevelopment Agency of San Jose (9th Cir. 1988) 841
F.2d 886, 890 [“The power to zone and rezone . . . by its very nature encompasses
the power to exclude competition”].)
Second, we believe that the additional statement in the quoted passage —
that “so long as the primary purpose of the zoning ordinance is not to regulate
economic competition, but to subserve a valid objective pursuant to [the] city’s
police powers, such ordinance is not invalid even though it might have an indirect
impact on economic competition” (Van Sicklen, supra, 15 Cal.App.3d 122,
128) — also is ambiguous and at least potentially misleading. That language
could be interpreted to suggest that a zoning ordinance is valid only when the
ordinance has merely an “indirect impact” on economic competition, and never
when the regulation of economic competition is a direct and intended effect of the
ordinance, even in instances in which a zoning ordinance uses the regulation of
competition simply as a means or tool to achieve an authorized and valid public
purpose — such as the preservation of an existing downtown commercial
district — rather than to serve an impermissible private anticompetitive purpose or
interest — such as securing a financial advantage or monopoly position for the
benefit of a favored business or individual or imposing a disadvantage on an
unpopular business or individual. As so interpreted, the language would be
inaccurate. As we shall see, although this language from Van Sicklen has been
repeated in subsequent Court of Appeal decisions, those decisions have not
invalidated zoning actions simply because such actions reasonably could be
viewed as having more than a mere indirect impact on economic competition.
Instead, the more recent decisions have upheld zoning actions even when
regulation of economic competition reasonably could be viewed as a direct and
intended effect of a challenged zoning action, so long as the primary purpose of
16
the zoning action — that is, its principal and ultimate objective — is to achieve a
valid public purpose such as furthering a municipality’s general plan for controlled
growth or for localized commercial development, rather than simply to serve an
impermissible anticompetitive private purpose such as investing a favored private
business with monopoly power or excluding an unpopular company from the
community.
The case of Ensign Bickford Realty Corp. v. City Council (1977) 68
Cal.App.3d 467 (Ensign Bickford) provides a good illustration of this point. In
Ensign Bickford, the plaintiff owned property in the City of Livermore that
originally had been zoned “CN,” a classification permitting neighborhood
commercial facilities, but that thereafter had been rezoned “RS-4,” permitting
residential use only. Having planned to construct a neighborhood shopping center
on its property and already having obtained a commitment from a grocery store
chain to be a major tenant, the plaintiff requested the city to rezone its property
CN. Upon the recommendation of the city planning commission, the city council
denied the request, explaining that the city recently had zoned property in another
nearby area — the Springtown neighborhood, in which the city was attempting to
encourage development — to permit the construction of a neighborhood shopping
center and that the city did not believe that the residential population in the
relevant area was sufficient to support two shopping centers. (68 Cal.App.3d at
pp. 471-472.)
In response to the city’s action, the plaintiff filed the lawsuit in Ensign
Bickford. The trial court ruled in the plaintiff’s favor, finding that the city’s
purpose in denying the plaintiff’s application “was to encourage development of
the Springtown CN zoned property by eliminating a competitive economic threat
to such property, and that the council’s decision was not predicated upon
17
consideration of public health, welfare, safety or morals.” (Ensign Bickford,
supra, 68 Cal.App.3d at p. 472.)
On appeal, the Court of Appeal reversed. After quoting at length the
passage from Van Sicklen, supra, 15 Cal.App.3d 122, 127-128, set forth above, the
court in Ensign Bickford continued: “Here, the city council determined that the
area needed and would support one shopping center, and that to further the long-
range development plan for the city, the shopping center should not be located on
Bickford’s property, but in Springtown. This would have the effect of
encouraging residential and commercial development in that area. It would also
undoubtedly have the effect of decreasing the market or lease value of
[Bickford’s] property. By its very nature, a zoning ordinance may be expected to
depress the value of some land while it operates, in its total effect, to achieve an
end which will benefit the whole community. . . . [¶] . . . Here, the city is
attempting to regulate where, within the city, business will be developed. In
furtherance of this legitimate end, it is necessary to permit business development
in one area before allowing commercial development in another. The economic
impact upon the property involved is only incidental. The primary purpose is
clearly the reasonable regulation of land use. [Citation.] There is no evidence, nor
can it be inferred, that the city council was attempting to permit commercial
development on one parcel and deny it as to another for the purpose of creating a
business monopoly or to unreasonably regulate the commercial development of
the city. To the contrary, the council was regulating the commercial growth of the
city as it related to the needs of the residential areas for that commercial
development.” (Ensign Bickford, supra, 68 Cal.App.3d at pp. 477-478.)
Accordingly, although the city’s denial of the plaintiff’s rezoning request in
Ensign Bickford reasonably could be viewed as having the direct and intended
effect of regulating or limiting competition (that is, precluding the potential
18
competition that would have resulted from the construction of a competing
shopping center on the plaintiff’s property), the court in Ensign Bickford
nonetheless upheld the validity of the city’s action, recognizing that the primary
purpose of the city’s regulation of competition in this context was not to further or
disadvantage a private business but instead was to serve the city’s legitimate
public interest in carefully planning and controlling the pace and location of
growth within the city.8
The more recent case of Wal-Mart Stores, Inc. v. City of Turlock (2006)
138 Cal.App.4th 273 (Wal-Mart) provides another apt example. In Wal-Mart, the
City of Turlock enacted a zoning ordinance that, while permitting the operation of
traditional “big box” discount stores in a designated district, prohibited the
development, anywhere in the city, of so-called discount superstores — defined
generally as large discount stores that include a full-service grocery department.9
8
In Carty v. City of Ojai (1978) 77 Cal.App.3d 329, the Court of Appeal
similarly rejected a challenge to a city’s action in rezoning property located at the
outskirts of the city to prohibit the development of a shopping center on the
property. Although the plaintiffs in that case did not challenge the rezoning as an
improper regulation of competition, they did maintain that the city’s action was
“arbitrary and discriminatory.” (Id., at p. 333.) In rejecting that claim, the court in
Carty, noting that the city’s general plan — which had been adopted many years
earlier — recognized the potentially deleterious effect on the city’s downtown
commercial area that might result if private commercial development occurred in
the outlying areas of the city rather than in the downtown area, concluded that
“long before the adoption of [the challenged ordinance] the [city] officials acted to
encourage and promote the orderly growth and development of their community in
the manner recommended by the general plan. The adoption of the [rezoning
ordinance] is consonant with that purpose.” (77 Cal.App.3d at p. 339.)
9
The Turlock ordinance defined “discount stores” as “ ‘stores with off-street
parking that usually offer a variety of customer services, centralized cashing, and a
wide range of products. They usually maintain long store hours seven (7) days a
week. The stores are often the only ones on the site, but they can also be found in
mutual operation with a related or unrelated garden center or service station.
(footnote continued on following page)
19
In explaining the rationale underlying the restriction on discount superstores, the
ordinance set forth a series of facts or findings, stating in part that (1) “ ‘the
Turlock General Plan . . . establishes locational requirements for [regional and
neighborhood] retail centers; encouraging a number of neighborhood centers
equally dispersed throughout the city while encouraging a concentration of
regional shopping centers along the Highway 99/Countryside Drive corridor’ ” (id.
at p. 283); (2) the city’s “ ‘General Plan policies promote and encourage vital
neighborhood commercial districts that are evenly distributed throughout the city
so that residents are able to meet their basic daily shopping needs at neighborhood
shopping centers’ ” (ibid.); (3) “ ‘discount superstores compete directly with
existing grocery stores that anchor neighborhood-serving commercial centers’ ”
(ibid.); (4) “ ‘the establishment of discount superstores in Turlock is likely to
negatively impact the vitality and economic viability of the city’s neighborhood
commercial centers by drawing sales away from traditional supermarkets located
in these centers’ ” (ibid.); and (5) “ ‘smaller stores within a neighborhood center
rely upon the foot traffic generated by the grocery store for their existence and in
neighborhood centers where the grocery store closes, vacancy rates typically
increase and deterioration takes place in the remaining center.’ ” (Ibid.)
(footnote continued from preceding page)
Discount stores are also sometimes found as separate parcels within a retail
complex with their own dedicated parking.’ ” (Wal-Mart, supra, 138 Cal.App.4th
at p. 282.)
The ordinance defined “discount superstore” as a “discount store that
exceeds 100,000 square feet of gross floor area and devotes at least 5 percent of
the total sales floor area to the sale of nontaxable merchandise, often in the form of
a full-service grocery department.” (Wal-Mart, supra, 138 Cal.App.4th at p. 282.)
20
Wal-Mart filed an action challenging the validity of the ordinance on a
variety of grounds, including the contention that the ordinance exceeded the city’s
police powers because it was “designed to suppress economic competition, and is
not reasonably related to the public welfare.” (Wal-Mart, supra, 138 Cal.App.4th
273, 299.) In rejecting this argument, the Court of Appeal in Wal-Mart stated:
“With respect to Wal-Mart’s claim of anticompetitive purpose, we agree with the
trial court that, while the Ordinance likely will have an anticompetitive effect in
the grocery business in [the City of Turlock], that incidental effect does not render
arbitrary an ordinance that was enacted for a valid purpose. [Citing Van Sicklen,
supra, 15 Cal.App.3d 122.] While zoning ordinances may not legitimately be
used to control economic competition, they may be used to address the
urban/suburban decay that can be its effect. [Citing, among other cases, Ensign
Bickford, supra, 68 Cal.App.3d 467, 477-478.]” (Wal-Mart, supra, 138
Cal.App.4th at p. 302.) The appellate court in Wal-Mart concluded: “In summary,
the police power empowers cities to control and organize development within their
boundaries as a means of serving the general welfare. [The City of Turlock]
legitimately chose to organize the development within its boundaries using
neighborhood shopping centers dispersed throughout the city. The Ordinance is
reasonably related to protecting that development choice.” (Wal-Mart, supra, 138
Cal.App.4th at p. 303.)
Accordingly, although the zoning ordinance in Wal-Mart, supra, 138
Cal.App.4th 273, like the zoning action in Ensign Bickford, supra, 68 Cal.App.3d
467, reasonably could be viewed as having a direct and intended effect of
regulating competition, the court in Wal-Mart nonetheless upheld the validity of
the ordinance because the principal and ultimate objective of the ordinance’s
regulation of competition was to further the city’s legitimate public interest in
21
avoiding the “urban/suburban decay” that may result from the location of some
types of large-scale commercial development in an outlying area of a municipality.
Our court has not previously had occasion to address the question whether a
municipality, in order to protect or preserve the economic viability of its
downtown business district or neighborhood shopping areas, may enact a zoning
ordinance that regulates or controls competition by placing limits on potentially
competing commercial activities or development in other areas of the
municipality. More than a half-century ago, however, this court explained that
“[i]t is well settled that a municipality may divide land into districts and prescribe
regulations governing the uses permitted therein, and that zoning ordinances, when
reasonable in object and not arbitrary in operation, constitute a justifiable exercise
of police power.” (Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 460; see
also Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d
582, 604-605; see generally Cal. Const., art. XI, § 7; Gov. Code, § 65800 et seq.)
As the circumstances underlying the decisions in Ensign Bickford, supra, 68
Cal.App.3d 467, and Wal-Mart, supra, 138 Cal.App.4th 273, demonstrate, even
when the regulation of economic competition reasonably can be viewed as a direct
and intended effect of a zoning ordinance or action, so long as the primary purpose
of the ordinance or action — that is, its principal and ultimate objective — is not
the impermissible private anticompetitive goal of protecting or disadvantaging a
particular favored or disfavored business or individual, but instead is the
advancement of a legitimate public purpose — such as the preservation of a
municipality’s downtown business district for the benefit of the municipality as a
whole — the ordinance reasonably relates to the general welfare of the
municipality and constitutes a legitimate exercise of the municipality’s police
power. (Accord, Lockard v. City of Los Angeles, supra, 33 Cal.2d 453, 466 [“in
determining what uses should be permitted in the 12-block strip, the legislative
22
body was, of course, entitled to consider the effect of such uses on the surrounding
areas, and to weigh the possibility of injury to those areas by reason of permitting
various types of activity as against the desirability of allowing such uses”]; see
generally 1 Rathkopf, The Law of Zoning and Planning (1998 rev. ed.) § 2:20,
pp. 2-59 to 2-61; Strom, Land Use Controls: Effects on Business Competition II
(1980) 6 Zoning & Planning L.Rep. 41, 46.)10 To the extent that any language in
Van Sicklen, supra, 15 Cal.App.3d 122, Ensign Bickford, supra, 68 Cal.App.3d
467, or Wal-Mart, supra, 138 Cal.App.4th 273, may be interpreted as inconsistent
with this conclusion, such an interpretation is disapproved.11
10
Numerous cases in other jurisdictions have upheld zoning ordinances that
limit some or all commercial development in outlying locations in order to protect
or strengthen the economic viability of a municipality’s central business district.
(See, e.g., Jacobs, Visconsi, & Jacobs Co. v. City of Lawrence (10th Cir. 1991)
927 F.2d 1111, 1119 [“[T]he district court correctly concluded that retaining the
vitality of the downtown area was a legitimate interest of the city commission.
Declining to rezone property in a manner that would threaten the vitality of the
downtown retail area is rationally related to that purpose”]; E & G Enterprises v.
City of Mount Vernon (Iowa Ct.App. 1985) 373 N.W.2d 693, 694 [“Mount
Vernon’s effort to preserve its downtown business area is a valid exercise of
police power. . . . [P]reservation of that area promotes the public welfare,
including the maintenance of property values”]; Forte v. Borough of Tenafly
(N.J.App.Div. 1969) 255 A.2d 804, 806 [“May a municipality which wishes to
preserve, rehabilitate and improve an established business area devoted chiefly to
retail stores, zone the rest of the municipality against retail sales? We hold that it
may”]; Chevron Oil Co. v. Beaver County (Utah 1969) 449 P.2d 989, 990
[county’s refusal to rezone land in outlying area to permit “highway services”
development was justified “on the ground that any tourist business which would
go to the isolated junction area would be a loss to the established businesses of
Beaver City”].)
11
The case of Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004,
relied upon by plaintiffs and amicus curiae on behalf of plaintiffs, is entirely
consistent with our conclusion. In that case, the plaintiff organization, which
opposed the opening of a proposed Borders bookstore in the City of Davis,
contended that the city had erred in interpreting its design review ordinance as not
(footnote continued on following page)
23
In the present case, it is clear that the zoning ordinance’s general
prohibition on the sale of furniture in the PC district — although concededly
intended, at least in part, to regulate competition — was adopted to promote the
legitimate public purpose of preserving the economic viability of the Hanford
downtown business district, rather than to serve any impermissible private
anticompetitive purpose. Furthermore, as in Ensign Bickford, supra, 68
Cal.App.3d 467, here the zoning ordinance’s restrictions are aimed at regulating
“where, within the city” (id. at p. 477), a particular type of business generally may
be located, a very traditional zoning objective. Under these circumstances, we
agree with the lower courts’ conclusion that the zoning ordinance cannot be found
invalid as an improper limitation on competition.
III
As noted above, although the Court of Appeal agreed that the challenged
zoning ordinance’s general prohibition on the sale of furniture in the PC district is
permissible, that court concluded the ordinance in question violates the equal
protection clause by limiting the exception created by the ordinance to only the
sale of furniture by large department stores, and not making the exception
(footnote continued from preceding page)
authorizing the city to consider the identity of a proposed tenant for a particular
development as part of the design review process. In rejecting the plaintiff’s
contention, the Court of Appeal observed: “Zoning and building laws ‘cannot be
used unqualifiedly to restrict competition’ [citation], or simply to shield existing
businesses from competition [citations]. While valid zoning regulations may
affect competition and have other economic effects, a city does not have carte
blanche to exclude a retail merchant that it, or some of its residents, do not like.”
(83 Cal.App.4th at p. 1013.) Nothing in Friends of Davis suggests that a city may
not use its zoning power to limit a particular type of commercial activity in one or
more parts of the city in order to protect and preserve the economic viability of the
city’s downtown commercial district.
24
available to other retail stores wishing to sell furniture within the same amount of
square-footage permitted for furniture sales by large department stores. The Court
of Appeal found that, in this context, the ordinance’s disparate treatment of large
department stores and other retail stores is not constitutionally permissible.
In evaluating the Court of Appeal’s resolution of this issue, we begin with
the question of the appropriate equal protection standard applicable in this case.
As explained in Warden v. State Bar (1999) 21 Cal.4th 628, there are “two
principal standards or tests that generally have been applied by the courts of this
state and the United States Supreme Court in reviewing classifications that are
challenged under the equal protection clause of the Fourteenth Amendment of the
United States Constitution or article I, section 7, of the California Constitution. . . .
‘The first is the basic and conventional standard for reviewing economic and
social welfare legislation in which there is a “discrimination” or differentiation of
treatment between classes or individuals. It manifests restraint by the judiciary in
relation to the discretionary act of a co-equal branch of government; in so doing it
invests legislation involving such differentiated treatment with a presumption of
constitutionality and “requir[es] merely that distinctions drawn by a challenged
statute bear some rational relationship to a conceivable legitimate state purpose.”
[Citation.] . . . Moreover, the burden of demonstrating the invalidity of a
classification under this standard rests squarely upon the party who assails it.’ ”
(Warden, supra, 21 Cal.4th at pp. 640-641.) This first basic equal protection
standard generally is referred to as the “rational relationship” or “rational basis”
standard.
As further explained in Warden, supra, 21 Cal.4th 628, the second equal
protection standard is “ ‘[a] more stringent test [that] is applied . . . in cases
involving “suspect classifications” or touching on “fundamental interests.” Here
the courts adopt “an attitude of active and critical analysis, subjecting the
25
classifications to strict scrutiny. [Citations.] Under the strict standard applied in
such cases, the state bears the burden of establishing not only that it has a
compelling interest which justifies the law but that the distinctions drawn by the
law are necessary to further its purpose.” [Citation.]’ ” (Warden, supra, 21
Cal.4th at p. 641.) This second standard generally is referred to as the “strict
scrutiny” standard.12
The zoning ordinance at issue in the present case does not involve suspect
classifications or touch upon fundamental interests and thus, as the Court of
Appeal recognized and as all parties agree, the applicable standard under which
plaintiffs’ equal protection challenge properly must be evaluated is the rational
relationship or rational basis standard.
As noted above, in finding the exception set forth in the ordinance invalid
under the rational relationship test, the Court of Appeal reasoned that “with the
blanket 2,500-square-foot restrictions on furniture in the PC zone, the small
retailer poses the same potential threat, if any, to the downtown merchants as the
larger store. Thus, limiting the furniture sales exception to stores with more than
50,000 square feet is arbitrary. A rational relationship between the size
classification and the goal of protecting downtown simply does not exist.”
We disagree with the Court of Appeal’s determination that the ordinance
violates the equal protection clause. The Court of Appeal’s conclusion effectively
rests on the premise that there was only a single purpose underlying the challenged
ordinance — the protection of furniture stores located in the downtown business
12
In applying the federal equal protection clause, the United States Supreme
Court has applied a third standard — “intermediate scrutiny” — “to discriminatory
classifications based on sex or illegitimacy.” (Clark v. Jeter (1988) 486 U.S. 456,
461.) It is clear that that standard is inapplicable here.
26
district from potential competition by retail establishments conducting business
within the PC district. Because the Court of Appeal was of the view that the
disparate treatment in the ordinance’s exception of large department stores and
other stores was not rationally related to that purpose, the appellate court
concluded the exception was invalid.
Both the terms and legislative history of the measure at issue disclose,
however, that the ordinance was intended to serve multiple purposes: to protect
the economic health and viability of the city’s downtown furniture stores, but to do
so in a manner that did not threaten or detract from the city’s ability to attract and
retain large department stores in the PC district. Past cases establish that the equal
protection clause does not preclude a governmental entity from adopting a
legislative measure that is aimed at achieving multiple objectives, even when such
objectives in some respects may be in tension or conflict.
The United States Supreme Court’s relatively recent decision in Fitzgerald
v. Racing Assn. of Central Iowa (2003) 539 U.S. 103 (Fitzgerald) demonstrates
this point. In Fitzgerald, the court addressed the constitutionality of a 1994 Iowa
statute that imposed a maximum tax rate of 20 percent on revenues generated by
slot machines located on excursion riverboats, but imposed a maximum tax rate of
36 percent on revenues generated by slot machines located at racetracks. In
describing the background of the statute, the high court in Fitzgerald explained
that prior to 1989 Iowa had permitted only one form of gambling — parimutuel
betting at racetracks — but that in 1989 the state authorized other forms of
gambling, including the use of slot machines on riverboats, and at the same time
imposed a maximum tax rate of 20 percent on revenues generated by the riverboat
slot machines. Thereafter, in 1994, the state enacted the statute at issue in
Fitzgerald — a provision that for the first time authorized racetracks to operate
slot machines, imposed a maximum tax rate of 36 percent on revenues generated
27
by the racetrack slot machines, and (while making other changes with regard to
riverboat slot machines) left the maximum tax rate on riverboat slot machine
revenue at 20 percent.
After the 1994 statute was enacted, a group of racetracks brought a state
court action challenging the constitutionality, under the equal protection clause, of
the 20 percent/36 percent differential in maximum tax rates imposed on riverboat
and racetrack slot machine revenues. The state trial court upheld the statute, but
on appeal the Iowa Supreme Court, by a 4-3 vote, reversed the lower court
decision. In reaching its conclusion, the majority opinion of the Iowa Supreme
Court reasoned that the “ ‘differential tax completely defeats the alleged purpose’
of the statute, namely, ‘to help the racetracks recover from economic distress,’ that
there could ‘be no rational reason for this differential tax,’ and that the Equal
Protection Clause consequently forbids its imposition.” (Fitzgerald, supra, 539
U.S. at p. 106.) Thereafter, the United States Supreme Court granted certiorari
and unanimously reversed the Iowa Supreme Court decision.
In holding that the challenged statute did not violate equal protection
principles, the United States Supreme Court explained in Fitzgerald that the Iowa
Supreme Court could not deny “that the Iowa law, like most laws, might
predominantly serve one general objective, say, helping the racetracks, while
containing subsidiary provisions that seek to achieve other desirable (perhaps even
contrary) ends as well, thereby producing a law that balances objectives but still
serves the general objective when seen as a whole.” (Fitzgerald, supra, 539 U.S.
at p. 108.) The high court continued in Fitzgerald: “Once one realizes that not
every provision in a law must share a single objective, one has no difficulty
finding the necessary rational support for the 20 percent/36 percent differential
here at issue. That difference, harmful to racetracks, is helpful to the riverboats,
which, as respondents concede, were also facing financial peril . . . . And aside
28
from simply aiding the financial position of the riverboats, the legislators may
have wanted to encourage the economic development of river communities or to
promote riverboat history, say, by providing incentives for riverboats to remain in
the State, rather than relocate to other States. . . . Alternatively, they may have
wanted to protect the reliance interests of riverboat operators, whose adjusted slot
machine revenue had previously been taxed at the 20 percent rate. All these
objectives are rational ones, which lower riverboat tax rates could further and
which suffice to uphold the different tax rates.” (Fitzgerald, supra, 539 U.S. at
p. 109; accord, e.g., Kadrmas v. Dickinson Public Schools (1988) 487 U.S. 450,
462-463 [“ ‘[W]e will not overturn such a statute unless the varying treatment of
different groups or persons is so unrelated to the achievement of any combination
of legitimate purposes that we can only conclude that the legislature’s actions were
irrational’ ” (italics added)]; Railroad Retirement Bd. v. Fritz (1980) 449 U.S. 166,
181 (conc. opn. of Stevens, J.) [legislation often is the “product of multiple and
somewhat inconsistent purposes that led to certain compromises”].)
Like the Iowa statute at issue in Fitzgerald, supra, 539 U.S. 103, the
Hanford ordinance challenged here clearly was intended to serve multiple
purposes. The city desired to protect the economic viability of its downtown
business district, but at the same time it did not wish to diminish the financial
benefits of the PC district for the large department stores that it wanted to attract
and maintain in that district. Because the city viewed large department stores as
particularly significant elements of the PC district, and because the management of
those stores had made clear the importance to them of retaining their ability to
offer furniture sales that typically were offered by their sister stores in other
locations, it was rational for the city to decide to provide an exception from the
general prohibition on furniture sales in the PC district for such large department
stores and only such stores. The circumstance that the city also decided to limit
29
the exemption afforded to department stores by placing a square-foot limit on the
area within each store in which furniture could be displayed does not in any
manner detract from the rationality of limiting the exception to large department
stores.
Accordingly, contrary to the Court of Appeal’s determination, we conclude
that the ordinance’s differential treatment of large department stores and other
retail stores is rationally related to one of the legitimate legislative purposes of the
ordinance — the purpose of attracting and retaining large department stores within
the PC district. The Court of Appeal’s resolution of this issue, which would have
required the city to extend the ordinance’s 2,500-square-foot exception for
furniture sales to all retail stores within the PC district, would have undermined
the ordinance’s overall objective of permitting the sale of furniture in the PC
district only to the extent such activity is necessary to serve the city’s interest in
attracting and retaining large department stores in that district.13
13
Plaintiffs alternatively contend that the amended ordinance is
unconstitutional because the city arbitrarily singled them out for discriminatory
treatment (see, e.g., Village of Willowbrook v. Olech (2000) 528 U.S. 562), relying
on the circumstance that the city’s enactment of the amendment was triggered by
plaintiffs’ complaint that they were being treated differently from the large
department stores located in the PC district. The trial court rejected this claim, and
we agree with that court’s conclusion. There is no indication the city’s action was
based upon hostility toward plaintiffs; the amended ordinance prohibits the sale of
furniture in the PC district by all retail stores other than large department stores
and does not single out plaintiffs’ store for disparate treatment. As the Court of
Appeal explained in Wal-Mart, supra, 138 Cal.App.4th 273, 302-303, in rejecting
a similar claim proffered by Wal-Mart in that case: “[T]he simple fact that Wal-
Mart was the first company to feel the effect of the Ordinance is not sufficient to
establish that Wal-Mart was targeted in any unconstitutional manner. If that fact
were enough to require a finding that a local governmental entity had exceeded its
police power, then local government could never react to new situations brought to
its attention by a specific proposal without having the reaction invalidated under
the claim that it ‘targeted’ the specific proposal. In short, local governments need
(footnote continued on following page)
30
IV
In sum, the Court of Appeal erred in invalidating the ordinance at issue.
The judgment of the Court of Appeal is reversed.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
(footnote continued from preceding page)
the flexibility to react to specific proposals for a new kind of development not
previously contemplated where such a development will or may have harmful
consequences to the locality’s legitimate planning objectives.”
31
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion Hernandez v. City of Hanford
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 137 Cal.App.3th 1397
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S143287Date Filed: June 7, 2007
__________________________________________________________________________________
Court:
SuperiorCounty: Kings
Judge: Peter M. Schultz
__________________________________________________________________________________
Attorneys for Appellant:
Motschiedler, Michaelides & Wishon and Russell K. Ryan for Plaintiffs and Appellants.Deborah J. La Fetra and Timothy Sandefur for Pacific Legal Foundation as Amicus Curiae on behalf of
Plaintiffs and Appellants.
__________________________________________________________________________________
Attorneys for Respondent:
Howard Rice Nemerovski, Canady Falk & Rabkin, Steven L. Mayer; Kahn, Soares & Conway, Michael J.Noland and Rissa A. Stuart for Defendants and Respondents.
Hanson Bridgett Marcus Vlahos & Rudy and Thomas B. Brown for League of California Cities and
California State Association of Counties as Amici Curiae on behalf of Defendants and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Russell K. RyanMotschiedler, Michaelides & Wishon
1690 West Shaw Avenue, Suite 200
Fresno, CA 93711
(559) 439-4000
Steven L. Mayer
Howard Rice Nemerovski, Canady Falk & Rabkin
Three Embarcadero Center, 7th Floor
San Francisco, CA 94111-4024
(415) 434-1600
Date: | Docket Number: |
Thu, 06/07/2007 | S143287 |
1 | City Of Hanford (Defendant and Respondent) Represented by Rissa Ann Stuart Kahn, Soares & Conway, LLP 219 N. Douty Street Hanford, CA |
2 | City Of Hanford (Defendant and Respondent) Represented by Steven L. Mayer Howard, Rice, Nemerovski, Canady, Falk & Rabkin Three Embarcardo Center, 7th Floor San Francisco, CA |
3 | Hanford City Council (Defendant and Respondent) Represented by Rissa Ann Stuart Kahn, Soares & Conway, LLP 219 N. Douty Street Hanford, CA |
4 | Hanford City Council (Defendant and Respondent) Represented by Steven L. Mayer Howard, Rice, Nemerovski, Canady, Falk & Rabkin Three Embarcardo Center, 7th Floor San Francisco, CA |
5 | Hernandez, Adrian (Plaintiff and Appellant) Represented by Russell K. Ryan Motschiedler, Michaellides & Wishon, LLP 1690 W. Shaw Avenue, Suite 200 Fresno, CA |
6 | Hernandez, Tracy (Plaintiff and Appellant) Represented by Russell K. Ryan Motschiedler, Michaellides & Wishon, LLP 1690 W. Shaw Avenue, Suite 200 Fresno, CA |
7 | Country Hutch Home Furnishings & Mattress (Plaintiff and Appellant) Represented by Russell K. Ryan Motschiedler, Michaellides & Wishon, LLP 1690 W. Shaw Avenue, Suite 200 Fresno, CA |
8 | Pacific Legal Foundation (Amicus curiae) Represented by Timothy Mason Sandefur Pacific Legal Foundation 3900 Lennane Drive, Suite 200 Sacramento, CA |
9 | League Of California Cities (Amicus curiae) Represented by Thomas B. Brown Hanson Bridgett Marcus Vlahos & Rudy, LLP 425 Market Street, 26th Floor San Francisco, CA |
10 | California State Association Of Counties (Amicus curiae) Represented by Thomas B. Brown Hanson Bridgett Marcus Vlahos & Rudy, LLP 425 Market Street, 26th Floor San Francisco, CA |
Disposition | |
Jun 7 2007 | Opinion: Reversed |
Dockets | |
May 5 2006 | Petition for review filed City of Hanford, defendant and respondent Rissa A. Stuart, retained counsel |
May 10 2006 | Record requested via email |
May 11 2006 | Received Court of Appeal record three doghouses |
May 25 2006 | Answer to petition for review filed Adrian Hernandez and Tracy Hernandez, Plaintiffs and Appellants. Russell K. Ryan, counsel |
Jun 5 2006 | Reply to answer to petition filed The City of Hanford and Hanford City Council Rissa A. Stuart, counsel |
Jun 30 2006 | Time extended to grant or deny review to and including August 3, 2006, or the date upon which review is either granted or denied. |
Jul 12 2006 | Petition for review granted (civil case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. |
Jul 12 2006 | Letter sent to: counsel w/enclosed "Certification of Interested Entities" form. Each party has 15 days from today to complete and return the form. |
Jul 26 2006 | Certification of interested entities or persons filed City of Hanford et al., Defendants and Respondents. Rissa Ann Stuart, counsel. |
Aug 7 2006 | Filed: Notice of Association of Counsel. The City of Hanford et al., Defendants and Respondents, associate in as counsel Steven L. Mayer of Howard, Rice, Nemerovski, Canady, Falk & Rabkin. |
Aug 8 2006 | Request for extension of time filed Atty Steven Mayer counsel for City of Hanford et al., Defendants and Respondents requesting to 9/10/06 to file opening brief on the merits (to court for permission) |
Aug 10 2006 | Extension of time granted On application of respondents and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including September 10, 2006. |
Sep 7 2006 | Request for extension of time filed Atty Steven Mayer counsel for City of Hanford et al., Defendants and Respondents requesting to 10/12/06 to file opening brief on the merits (to court for permission) |
Sep 8 2006 | Extension of time granted On application of respondents and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including October 12, 2006. |
Oct 12 2006 | Opening brief on the merits filed City of Hanford and Hanford City Council, Defendants and Respondents Steven Mayer and Rissa A. Stuart, counsel |
Oct 31 2006 | Request for extension of time filed by appellants (Adrian Hernandez and Tracy Hernandez) requesting a 30-day extension to and including December 13, 2006 to file appellants' Answer Brief on the Merits. |
Nov 14 2006 | Extension of time granted On application of appellants and good cause appearing, it is ordered that the time to serve and file appellants' answer brief on the merits is hereby extended to and including December 13, 2006. |
Dec 8 2006 | Request for extension of time filed Adrian Hernandez et al., Plaintiffs and Appellants requesting to January 15 to file the answer brief on the merits (to court for permission) |
Dec 13 2006 | Extension of time granted On application of appellants and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including January 15, 2007. No further extensions of time will be granted. |
Jan 16 2007 | Answer brief on the merits filed Adrian and Tracy Hernandez, plaintiffs and appellants Russell Ryan, counsel (timely CRC 8.25) |
Feb 5 2007 | Reply brief filed (case fully briefed) City of Hanford and Hanford City Council, Defendants and Respondents. Steven L. Mayer and Rissa A. Stuart, counsel |
Mar 2 2007 | Received application to file Amicus Curiae Brief Atty Timothy Sandefur counsel for Pacific Legal Foundation requesting permission to file amicus curiae brief in support of appellants, Hernandez et al. (to court for permission to file) |
Mar 6 2007 | Received application to file Amicus Curiae Brief Atty Thomas B. Brown counsel for League of California Cities and the California State Association of Counties requesting permission to file amicus curiae brief in support of respondents, City of Hanford (to court for permission) |
Mar 6 2007 | Case ordered on calendar to be argued Wednesday, April 4, 2007, at 9:00 a.m., in Los Angeles |
Mar 7 2007 | Permission to file amicus curiae brief granted The application of Pacific Legal Foundation for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
Mar 7 2007 | Amicus curiae brief filed Pacific Legal Foundation in support of appellants. Timothy Sandefur, counsel |
Mar 7 2007 | Permission to file amicus curiae brief granted The application of League of California Cities and California State Association of Counties for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
Mar 7 2007 | Amicus curiae brief filed League of California Cities and California State Association of Counties in support of respondents. Thomas B. Brown, counsel |
Mar 28 2007 | Response to amicus curiae brief filed City of Hanford and Hanford City Council, Defendants and Respondents. Steven L. Mayer and Michael J. Noland, counsel (CRC, rule 8.25 - FedEx) *** in response to amicus curaie brief of Pacific Legal Foundation *** |
Apr 4 2007 | Cause argued and submitted |
Jun 6 2007 | Notice of forthcoming opinion posted |
Jun 7 2007 | Opinion filed: Judgment reversed Opinion By: George, C.J. Joined By: Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. |
Jul 11 2007 | Remittitur issued (civil case) |
Jul 11 2007 | Returned record to 5DCA (3-doghouses) |
Jul 20 2007 | Received: Receipt for Remittitur |
Briefs | |
Oct 12 2006 | Opening brief on the merits filed |
Jan 16 2007 | Answer brief on the merits filed |
Feb 5 2007 | Reply brief filed (case fully briefed) |
Mar 7 2007 | Amicus curiae brief filed |
Mar 7 2007 | Amicus curiae brief filed |
Mar 28 2007 | Response to amicus curiae brief filed |