Thille

Concurring. — I concur in the judgment. It is only fair, however, to admit that I have found it difficult to be satisfied with this extension to set-back ordinances, of the rule recently declared in the zoning cases. To say that the owner of a lot, in building thereon, shall leave vacant a thirty-foot strip in front of his property is different in fact, if not in principle, from a mere regulation governing the kind of structure that he may place upon his land. A set-back ordinance, at least in some instances, goes perilously near to depriving the owner of his property without compensation. To wholly deprive one of the use of property is in effect the same as taking the property entirely away from him. On the other hand, of course, it must be conceded that the use is not entirely destroyed, since there remain the rights of light and air and the right of access or passage to and fro across the otherwise unoccupied space. There also remains the right to cultivate the ground and ornament it with grass, trees, and flowers, or, if the owner prefers, with cabbages and turnips, until, perhaps, such right shall be taken away from him for esthetic reasons. A writer, who apparently is…

— The merits of this appeal rest upon a certain ordinance adopted by the city council of the city of Los Angeles on the fourteenth day of July, 1922, designated a “set-back ordinance.” In that ordinance the city council “determined that the public peace, health, safety, comfort, convenience, interest and welfare require and it is hereby ordered that the minimum distance back from the street line for the erection of buildings or structures to be designated as ‘set-back lines’ on Lake street between Bellevue avenue and Temple street,” for certain distances on either side of said North Lake Street should be thirty feet; and enacted that it should be unlawful to construct any buildings, etc., between the lines of the street and said “set-back” lines.

The plaintiff on the 7th of March, 1923, made an application in due form to the Board of Public Works of the City of Los Angeles for a permit to erect a garage at No. 458 North Lake Street, in said city, which permit was refused on the ground that the application did not show that the place where it was proposed to erect such garage was not within the said thirty feet between the established “set-back” line and the line of the street.…

Dissenting. — I dissent. As it is apparent that no consideration of public health, morals, safety, or welfare is here involved, it follows that in my judgment none of the reasons assigned for the exercise of the police power in the premises is sound. I cannot but think that the suggestion that more light, or more air, or more or better fire protection will be afforded in a residence district by reason of the enforcement of a set-back ordinance which forbids the erection of any building nearer than thirty feet to the front property line, is untenable. It may not be doubted that in a downtown business district in a city like New York, for example, where extremely tall buildings are permitted, such an ordinance might be helpful, if not essential, to the public welfare. But on a fairly wide street, in a residence district, the only consideration which can be reasonably urged for the passage of such an ordinance is that without it the beauty of the street will be marred; in other words, the reason is founded solely on esthetieal considerations. No one contends but that the police power is elastic; but the upholding of the ordinance in question as legal stretches the police power to the…