I dissent.
The ordinance in this case changed the zone in which plaintiffs’ business (concrete aggregates loading plant) was then established to embrace only “light manufacturing” to which class plaintiffs’ business did not belong. As is customary, the ordinance excepted from its operation for a period of 20 years, existing uses such as plaintiffs’. Yet in the next breath it provided that any exception could be revoked if the planning commission found that that could *130be done without violating the constitutional rights of the existing user or where the existing use was detrimental to the “public health or safety” or was a “nuisance.” For all practical purposes, therefore, no exception was granted for existing uses because the exception could be taken away at any time, and in the ease at bar, was taken away from plaintiffs with impunity.
It is settled in this state as elsewhere that a zoning ordinance which requires the discontinuance of nonconforming uses existing when the ordinance was adopted is a deprivation of property without due process of law contrary to the federal and state Constitutions. (Jones v. City of Los Angeles, 211 Cal. 304 [295 P. 14] ; Beverly Oil Co. v. City of Los Angeles, 40 Cal.2d 552 [254 P.2d 865]; Wilkins v. City of San Bernardino, 29 Cal.2d 332 [171 P.2d 542] ; Clemons v. City of Los Angeles, 36 Cal.2d 95 [222 P.2d 439] ; Price v. Schwafel, 92 Cal.App.2d 77 [206 P.2d 683]; Acker v. Baldwin, 18 Cal.2d 341 [115 P.2d 455]; Yokley, Zoning Law & Practice, § 133; 58 Am.Jur., Zoning, § 148; McQuillin, Municipal Corporations (3d ed.), § 25.181.) In Village of Terrace Park v. Errett, 12 F.2d 240, a zoning ordinance was held invalid which prohibited plaintiff from operating his gravel processing plant which was operating when the ordinance was passed. In In re Kelso, 147 Cal. 609 [82 P. 241, 109 Am.St.Rep. 178, 2 L.R.A.N.S. 796], it was held that an ordinance could not validly prohibit the maintenance of a rock quarry in the city. ■ In Dobbins v. Los Angeles, 195 U.S. 223 [25 S.Ct. 18, 49 L.Ed. 169] (reversing our court’s decision in Dobbins v. City of Los Angeles, 139 Cal. 179 [72 P. 970, 96 Am.St.Rep. 95]) the court held an ordinance unconstitutional which prohibited a gas works as applied to an existing gas works.
As a zoning ordinance which does not exempt existing nonconforming uses is invalid, it necessarily follows that an ordinance, like the one here, which excepts such uses but authorizes a planning commission to revoke those exceptions ■ where the public safety or health is involved, is also invalid. If public health and safety (police power), the basis for the zoning, cannot justify the destruction of existing uses, an administrative agency cannot be given such power. Those uses cannot be eliminated unless they inherently, or as exercised, are nuisances. (Jones v. City of Los Angeles, supra, 211 Cal. 304.)
Assuming the commission could be given the authority to *131determine that an existing nonconforming use was a nuisance, and hence not under the exception for such uses, it is difficult to see how the plaintiffs’ business could be a nuisance. It is in an area zoned for light manufacturing. Hence there is no question of disturbing the residents in a residential area. Plaintiffs obtained a permit to conduct its business and it complied with all “smog control and air pollution” ordinances.
In the disposition of the case the majority reverses the judgment granting an injunction in an action for preventive and declaratory relief and in so doing states that plaintiffs cannot review the action of the commission in a proceeding for declaratory relief or injunction. In effect the trial court is told to dismiss the action. Although it is said in Hostetter v. Alderson, 38 Cal.2d 499 [241 P.2d 230], that a determination by a local administrative agency cannot be reviewed in a declaratory relief action-, it has been done (see Edmonds v. County of Los Angeles, 40 Cal.2d 642 [255 P.2d 772]; Otis v. City of Los Angeles, 52 Cal.App.2d 605 [126 P.2d 954] ; Hoyt v. Board of Civil Service Commrs., 21 Cal.2d 399 [132 P.2d 804]; 15 Cal.Jur.2d, Declaratory Relief, §63; 2 Cal.Jur.2d, Administrative Law, §199). In any event, the declaratory relief action may be treated as mandamus, a proper remedy for review (Hostetter v. Alderson, supra, 38 Cal.2d 499; 2 Cal.Jur.2d, Administrative Law, §200), and it was alleged by plaintiffs that the commission had no competent evidence to prove any cause for revocation of its exemption from the ordinance. This should be pointed out to avoid a dismissal of the action.
I am convinced that the trial court correctly applied the law to the facts of this ease, and the judgment should be affirmed.