I dissent.
Limitations on growth may be justified in resort communities, beach and lake and mountain sites, and other rural and recreational areas; such restrictions are generally designed to preserve nature’s environment for the benefit of all mankind. They fulfill our fiduciary obligation to posterity. As Thomas Jefferson wrote, the earth belongs to the living, but in usufruct.1
But there is a vast qualitative difference when a suburban community invokes an elitist concept to construct a mythical moat around its perimeter, not for the benefit of mankind but to exclude all but its fortunate current residents.
The procedural posture of the ordinance does not detain me; the majority is correct in overruling Hurst v. Burlingame (1929) 207 Cal. 134 [277 P. 308]. The Hurst doctrine has long outlived its usefulness; it should no longer hobble the initiative process. Where I part company with the majority is in its substantive holding that a total exclusion of new residents can be constitutionally accomplished under a city’s police power.
The majority, somewhat desultorily, deny that the ordinance imposes an absolute prohibition upon population growth or residential construction. It is true that the measure prohibits the issuance of building permits for single-family residential, multiple residential and trailer residential units until designated public services meet specified standards. But to see such restriction in practicality as something short of total prohibition is to employ ostrich vision.
First of all, the ordinance provides no timetable or dates by which the public services are to be made adequate. Thus the moratorium on permits is likely to continue for decades, or at least until attrition ultimately reduces the present population. Second, it is obvious that no inducement exists for present residents to expend their resources to render facilities adequate for the purpose of accommodating future *617residents. It would seem more rational, if improved services are really contemplated for any time in the foreseeable future, to admit the new residents and compel them to make their proportionate contribution to the cost of the educational,, sewage and water services. Thus it cannot seriously be argued that Livermore maintains anything other than total exclusion.
The trial court found, inter alia, that the ordinance prohibited the issuance of building permits for residential purposes until certain conditions are met, but the measure does not provide that any person or agency is required to expend or commence any efforts on behalf of the city to meet the requirements. Nor is the city itself obliged to act within any specified time to cure its own deficiencies. Thus, in these circumstances procrastination produces its own reward: continued exclusion of new residents.
The significant omissions, when noted in relation to the ordinance preamble, reveal that the underlying purpose of the measure is “to control residential building permits in the City of Livermore”—translation: to keep newcomers out of the city—and not to solve the purported inadequacies in municipal educational, sewage and water services. Livermore concedes no building permits are now being issued and it relates no current or prospective schedule designed to correct its defective municipal services.
A municipal policy of preventing acquisition and development of property by nonresidents clearly violates article I, sections 1 and 7, subdivisions (a) and (b), of the Constitution of California.
Exclusion of unwanted outsiders, while a more frequent phenomenon recently, is not entirely innovative. The State of California made an abortive effort toward exclusivity back in the 1930s as part of a scheme to stem the influx of poor migrants from the dust bowl states of the southwest. The additional burden these indigent new residents placed on California services and facilities was severely aggravated by the great depression of that period. In Edwards v. California (1941) 314 U.S. 160 [86 L.Ed. 119, 62 S.Ct. 164], the Supreme Court held, however, that the nature of the union established by the Constitution did not permit any one state to “isolate itself from the difficulties common to all of them by restraining the transportation of persons and property across its borders.” The sanction against immigration of indigents was invalidated.
*618If California could not protect itself from the growth problems of that era, may Livermore build a Chinese Wall,to insulate itself from growth problems today? And if Livermore may do so, why not every municipality in Alameda County and in all other counties in Northern California? With a patchwork of enclaves the inevitable result will be creation of an aristocracy housed in exclusive suburbs while modest wage earners will be confined to declining neighborhoods, crowded into sterile, monotonous, multifamily projects, or assigned to pockets of marginal housing on the urban fringe. The overriding objective should be to minimize rather than exacerbate social and economic disparities, to lower barriers rather than raise them, to emphasize heterogeneity rather than homogeneity, to increase choice rather than limit it.
I am aware, of course, of the decision in Village of Belle Terre v. Boraas (1974) 416 U.S. 1 [39 L.Ed.2d 797, 94 S.Ct. 1536], in which the Supreme Court, speaking through Justice Douglas, rejected challenges to an ordinance restricting land use to one-family dwellings, with a veiy narrow definition of “family,” excluding lodging houses, boarding houses, fraternity houses, or multiple-dwelling houses. The village sought to assure that it would never grow much larger than 700 persons living in 220 residences. Comparable, although some growth was permitted, was the ordinance approved in Construction Ind. Ass’n, Sonoma Cty. v. City of Petaluma (9th Cir. 1975) 522 F.2d 897. Also similar, although allowing phased growth, was Golden v. Planning Board of Town of Ramapo (1972) 30 N.Y.2d 359 [334 N.Y.S.2d 138, 285 N.E.2d 291].2
In Belle Terre, Justice Douglas declared, “The police power is not confined to elimination of filth, stench, and unhealthy places. ... It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people .... A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs,”
This is a comforting environmentalist declaration with which few would disagree, although the result was to allow the village of Belle *619Terre to remain an affluent island. Nevertheless, “preservation of the character of the community” is a stirring slogan, at least where it is used for nothing more harmful than the exclusion of the six students who rented the large house in Belle Terre. Complications arise when ordinances are employed to exclude not merely student lodgers, but all outsiders. While the affluent may seek a congenial suburban atmosphere other than Belle Terre or Livermore, what are the alternatives for those in megalopolitan areas who cannot afford similar selectivity?
The right of all persons to acquire housing is not a mere esoteric principle; it has commanded recognition in a wide spectrum of aspects. In Shelley v. Kraemer (1948) 334 U.S. 1 [92 L.Ed. 1161, 68 S.Ct. 836, 3 A.L.R.2d 441], race restrictive covenants were declared to be constitutionally unenforceable. Chief Justice Vinson noted in his opinion that among the guarantees of the Fourteenth Amendment “are the rights to acquire, enjoy, own and dispose of property.” In Reitman v. Mulkey (1967) 387 U.S. 369 [18 L.Ed.2d 830, 87 S.Ct. 1627], the Supreme Court upheld our invalidation of a ballot proposition, declaring that “ ‘Neither the State nor any subdivision or agency thereof shall deny, limit of abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such properly to such person or persons as he, in his absolute discretion, chooses.’ ” Justice Douglas, in a concurring opinion in Reitman, went even further to insist that “housing is clearly marked with the public interest.” (Id. at p. 385 [18 L.Ed.2d at p. 840].) Again in Jones v. Mayer Co. (1968) 392 U.S. 409, 418 [20 L.Ed.2d 1189, 1196, 88 S.Ct. 2186], a case involving racial discrimination in housing, Justice Stewart spoke of the right of all citizens “ ‘to inherit, purchase, lease, sell, hold, and convey real and personal property.’ ” (Also see Buchanan v. Warley (1917) 245 U.S. 60 [62 L.Ed. 149, 38 S.Ct. 16].)
One thing emerges with clarity from the foregoing and from numerous related cases: access to housing is regarded by the Supreme Court as a matter of serious social and constitutional concern. While this interest has generally been manifest in the context of racial discrimination, there is no valid reason for not invoking the principle when persons of all races and of all economic groups are involved. There are no invariable racial or economic characteristics of the goodly numbers of families which seek social mobility, the opportunities for the good life available in a suburban atmosphere, and access to types of housing, education and employment differing from those indigenous to crowded urban centers.
*620There is a plethora of commentary on efforts, in a variety of contexts, of local communities to discourage the influx of outsiders. In virtually every instance, however, the cities limited availability of housing; until now it has never been seriously contemplated that a commmunity would attempt total exclusion by refusing all building permits. (See, e.g., Williams & Doughty, Studies in Legal Realism: Mount Laurel, Belle Terre and Berman (1975) 29 Rutgers L.Rev. 73; Note, Phased Zoning: Regulation of the Tempo and Sequence of Land Development (1974) 26 Stan.L.Rev. 585; Note, The Right to Travel and Exclusionary Zoning (1974) 26 Hastings L.J. 849; Deutsch, Land Use Growth Controls: A Case Study of San Jose and Livermore, California (1974) 15 Santa Clara Law. 1; Schroeder, Public Regulation of Private Land Use, 1973 Law & Soc. Order 747; Large, This Land is Whose Land? Changing Concepts of Land as Property (1973) Wis.L.Rev. 1039; Gaffrey, Containment Policies for Urban Sprawl, Univ. of Kan. Publications, No. 27; McClaughry, The New Feudalism (1975) 5 EnvironmentalL.Rev. 675; Kohl, The Environmental Movement: What Might It Be? (1975) 15 Nat.Res.J. 327; Note, The Right to Travel: Another Constitutional Standard for Local Land Use Regulations? (1972) 39 U.Chi.L.Rev. 612; Note, The Responsibility of Local Zoning Authorities to Nonresident Indigents (1971) 23 Stan.L.Rev. 774; Note, Exclusionary Zoning and Equal Protection (1971) 84 Harv.L.Rev. 1645; Sager, Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent (1969) 21 Stan.L.Rev. 767.)
The trend in the more perceptive jurisdictions is to prevent municipalities from selfishly donning blinders to obscure the problems of their neighbors. The Supreme Court of New Jersey has taken the lead in frowning upon creation of local exclusive enclaves and in insisting upon consideration of regional housing needs. In Oakwood at Madison, Inc. v. Township of Madison (1971) 117 N.J.Sup. 11 [283 A.2d 353, 358], the court held, “In pursuing the valid zoning purpose of a balanced community, a municipality must not ignore housing needs, that is, its fair proportion of the obligation to meet the housing needs of its own population and of the region. Housing needs are encompassed within the general welfare. The general welfare does not stop at each municipal boundary.” (Italics added.)
Again in the oft-cited Mt. Laurel case (So. Burlington Cty. N.A.A.C.P. v. Tp. of Mt. Laurel (1975) 67 N.J. 151 [336 A.2d 713, 724]) the New Jersey Supreme Court required that municipalities afford the opportunity for housing, “at least to the extent of the municipality’s fair share of *621the present and prospective regional need therefor.” (Italics added.) (Also see Schere v. Township of Freehold (1972) 119 N.J.Sup. 433 [292 A.2d 35, 37].)
Pennsylvania is another state that has forthrightly spoken out against ordinances “designed to be exclusive and exclusionary.” In National Land and Investment Company v. Kohn (1966) 419 Pa. 504 [215 A.2d 597, 612], a case remarkably similar to the instant matter, the Easttown community refused to admit new residents “unless such admittance will not create any additional burdens upon governmental functions and services.” Justice Roberts, for the Supreme Court, replied: “The question posed is whether the township can stand in the way of the natural forces which send our growing population into hitherto undeveloped areas in search of a comfortable place to live. We have concluded not. A zoning ordinance whose primary purpose is to prevent the entrance of newcomers in order to avoid future burdens, economic and otherwise, upon the administration of public services and facilities cannot be held valid.”
In Appeal of Girsh (1970) 437 Pa. 237 [263 A.2d 395], the Pennsylvania Supreme Court again spoke from a broad perspective. The community involved there barred all apartment houses for the identical reasons advanced by Livermore here. Said the court with irrefutable logic: “Appellee argues that apartment uses would cause a significant population increase with a resulting strain on available municipal services and roads, and would clash with the existing residential neighborhood. But we explicitly rejected both these claims in National Land, supra: ‘Zoning is a tool in the hands of governmental bodies which enables them to more , elfectively meet the demands of evolving and growing communities. It must not and can not be used by those officials as an instrument by which they may shirk their responsibilities. Zoning is a means by which a governmental body can plan for the future—it may not be used as a means to deny the future. ... Zoning provisions may not be used ... to avoid the increased responsibilities and economic burdens which time and natural growth invariably bring.’ 419 Pa. at 527-528, 215 A.2d at 610....
“. . . Appellee here has simply made a decision that it is content with things as they are, and that the expense or change in character that would result from people moving in to find ‘a comfortable place to live’ *622are for someone else to worry about. That decision is unacceptable. Statistics indicate that people are attempting to move away from the urban core areas, relieving the grossly overcrowded conditions that exist in most of our major cities. ... It follows then that formerly ‘outlying,’ somewhat rural communities, are becoming logical areas for development and population growth—in a sense suburbs to the suburbs. With improvements in regional transportation systems, these areas also are now more accessible to the central city.
“In light of this, Nether Providence Township may not permissibly choose to only take as many people as can live in single-family housing, in effect freezing the population at near present levels. Obviously if every municipality took that view, population spread would be completely frustrated. Municipal services must be provided somewhere, and if Nether Providence is a logical place for development- to take place, it should not be heard to say that it will not bear its rightful part of the burden.” (Id. at pp. 398-399; fn. omitted.)
In Girsh the Pennsylvania court added: “Perhaps in an ideal world, planning and zoning would be done on a regional basis, so that a given community would have apartments, while an adjoining community would not. But as long as we allow zoning to be done community by community, it is intolerable to allow one municipality (or many municipalities) to close its doors at the expense of surrounding communities and the central city.” (Id. at p. 399, fn. 4.)
Ordinances comparable to those invalidated in New Jersey and Pennsylvania have also been held invalid in Michigan (Bristow v. City of Woodhaven (1971) 35 Mich.App. 205 [192 N.W.2d 322]), Maryland (Baltimore Planning Com’n v. Victor Development Co. (1971) 261 Md. 358 [275 A.2d 478]) and Connecticut (Beach v. Planning & Zoning Commission (1954) 141 Conn. 79 [103 A.2d 814]).
In sum, I realize the easiest course is for this court to defer to the political judgment of the townspeople of Livermore, on a they-know-what’s-best-for-them theory (Eastlake v. Forest City Enterprises, Inc. (1976) 426 U.S. 668 [49 L.Ed.2d 132, 96 S.Ct. 2358]; James v. Valtierra (1971) 402 U.S. 137 [28 L.Ed.2d 678, 91 S.Ct. 1331]). But conceptually, when a locality adopts a comprehensive, articulated program to prevent any populátion growth over the foreseeable future, it places its public *623policy intentions visibly on the table for judicial scrutiny and constitutional analysis.
Communities adopt growth limits from a variety of motives. There may be conservationists genuinely motivated to preserve general or specific envirónments. There may be others whose motivation is social exclusionism, racial exclusion, racial discrimination, income segregation, fiscal protection, or just fear of any future change; each of these purposes is well served by growth prevention.
Whatever the motivation, total exclusion of people from a community is both immoral and illegal. (Cal. Const., art. I, §§ 1, 7, subds. (a) & (b).) Courts have a duty to prevent such practices, while at the same time recognizing the validity of genuine conservationist efforts.
The problem is not insoluble, nor does it necessarily provoke extreme results. Indeed, the solution can be relatively simple if municipal agencies would consider the aspirations of society as a whole, rather than merely the effect upon their narrow constituency. (See, e.g., A.L.I. Model Land Development Code, art. 7.) Accommodation between environmental preservation and satisfaction of housing needs can be reached through rational guidelines for land-use decision-making. Ours, of course, is not the legislative function. But two legal inhibitions must be the benchmark of any such guidelines. First, any absolute prohibition on housing development is presumptively invalid. And second, local regulations, based on parochialism, that limit population densities in growing suburban areas may be found invalid unless the community is absorbing a reasonable share of the region’s population pressures.
Under the foregoing test,, the Livermpre ordinance is fatally flawed. I would affirm the judgment of the trial court.
Jefferson called this principle “self-evident.” (Laing, Jefferson’s Usufruct Principle (July 3, 1976) 223 The Nation Magazine, p. 7.)
There are other variations in traditional zoning that attempt to accommodate both orderly development and community concerns: flexible zoning, compensatory regulations, planned unit development, density zoning, contract zoning, floating zoning and time-phased zoning. Until now total prohibition of all building permits has never been included among acceptable zoning schemes.