MINOR EXCEPTION REQUIREMENT FOR SALE OF ALCOHOLIC BEVERAGES

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OPINION N0. 74-1$ PAGE TWO arising near to residences, based upon a judgment that such establishments could reasonably be expected to constitute a source of disturbance to neighboring residents. No such in- compatability appears to exist between such premises and property used for agricultural purposes. It appears that the word "agricultural" was inserted into the section for no rea- son except that the A-1 zone includes residences as a per= muted use, and therefore an A-1 zone, like the various R zones, constitutes an area which is planned primarily for residential use, as opposed to commercial or industrial use. The City Council, in enacting the restrictions on on-premise sale of alcoholic beverages, apparently intended that such premises should not be allowed, except by minor exception, near areas which are planned primarily for residential uses, irrespective of whether the property in such an area is actually in use as a residence. If the City were to attempt to enforce the minor exception requirement solely on the basis that the subject premises were within 300 feet of property which was used for agricultural purposes, but which did not contain any residence and was not part of an area where residences were a permitted use, the City's action could probably be chal- lenged in court as arbitrary and discriminatory. Although the courts generally defer to the legislative .judgment in zoning classifications, they do require a reasonable basis for such classifications, and will strike down zoning res- trictions where there is no natural, intrinsic, or consti- tutional distinction between the subjects of_ the law which furnishes a reason for the classification. Roman Catholic Welfare Corp. v. Piedmont (Supreme Court, 1955) 289 P. ?.d 438; Carlin v. Palm Springs (Ct. of App., 1971) 92 Cal. Rptr. 535; Santa Barbara v. PZodern Neon Sign Co.(Ct. of App. 1961) 11 Cal. Rptr. 57. In the present case there is no apparent incompatability between a premises where alcohol is served and property used for agricultural purposes. Whatever in- compatability does exist is no greater in the case of pro- perty used for industrial purposes, where the minor exception requirement is not imposed. It is therefore submitted that Section 41-472, and the similar code sections should be construed to require a minor exception only when the subject premises is within 300 feet of property which is either actually in use as a resi- dence or which is zoned A-1 or R. It is recommended that these various code provisions be amended to express more clearly this construction in accordance with the evident legislative intent. Respectfully submitted, Richard E. Lay ~ -53- Deputy Z7FT. • nr