19381 RECENT NEWS REVIEWED 619

Highway Zoning Sustained by California Court

Design in Community Planning Upheld for Monterey County

By ALBERT S . BARD In a short decision full of good sense County

Judge Maurice T. Doolmg, Jr., supports a Monterey County (Calif.) highway zoning ordinance which places the community interest in the appearance of the highway and its abutting strips paramount over the desire or whim of the abutting private owner. The case is Monterey County v . Bassett, decided in October 1938. It involves protection to the San Simeon Highway along the California coast.

In an opinion of only slightly over five hun- dred words Judge Doolmg deals with the question of “esthetics and the constitution”; the commercial asset to a community and to private owners of sightliness in their high- ways, buildings, and structures; the value of the tourist trade; the pioneering in com- munity planning embodied in the Monterey ordinance ; the wholesome evolution in the judicial attitude toward community planning (including civic design) and toward the police- power; and concludes with a delightful hint to judges of the higher courts that if they overrule him, as they have power to do, he will still be right and they wrong, and that the judgment of time will so show.

With the significance of the case befo’re him, as thus briefly summarized, the reader will wish to know what, concretely, are its facts.

The defendant, Bassett, had an automobile service station adjoining the San Simeon or Coast Highway in Monterey County. When in 1934 the county adopted an amendment to its zoning ordinance this business was in- cluded in a highway commercial district. Later Bassett decided he would like to move, and he did, moving his station a half-mile down the road into an agricultural district. The little formality of securing a ptrmit, or of obtaining a reclassification under the zoning ordinance of the new location, was Ignored. Thereupon the county sued to enjoin Bassett ;

Bassett demurred to the complaint, claiming the ordinance to be unconstitutional; and now Judge Dooling overrules the demurrer, with the opinion above, holding the ordinance to be a valid exercise of the police-power.

I t is a pity that the entire opinion cannot be quoted. But the following extracts will indicate its good sense:

Basically the question here involved is this: Can the Board of Supervisors of Monterey County constitutionally impose certain building regulations upon the own- ers of property along the San Simeon Highway for the purposing of protecting the natural beauties of the section tra- versed by it? . . . The purpose of the questioned regulations is expressed in section 14a as follows: “to protect adjoin- ing property values, or the investment of public funds spent in the construction of scenic roads, or the general welfare inherent in an orderly and decent treat- ment of the scenery of the state of Cali- fornia, by insuring buildings in good taste, proper proportion, and in harmony with their surroundings.”

Any person of average sensibilities who has seen so many of our highways de- faced with the customary clutter of hot- dog stands and other commercially used eye-sores and architectural monstrosities must have sympathy for the purpose so expressed. However, the ordinance must be recognized as a pioneering effort in the field of police regulation, and the question remains: Can such a purpose be constitutionally accomplished?

I take it as settled that the police power cannot be exerted constitutionally for purely esthetic reasons. But what of the case where the esthetic affects property values and general economic welfare? . . .

I am convinced that within reasonable limits such regulation should be sustained, and I have accordingly decided to over- rule the demurrer. Perhaps a higher court will decide that in doing so I have attempted to force the hands of the clock forward too rapidly. If so, I am still confident that time will ultimately justify my judgment. We might remind the reader that the

Chevrolet roof-sign which offended Boston for SO many years was finally banished on purely esthetic grounds. I ts commercial propaganda was inconsistent with the dignity of the Mas- sachusetts State House and neighborhood (General Outdoor Advertising Co. v . Depart- ment of Public Works, 289 Mass. 149).