—I concur in the majority opin ion insofar as it finds the county unconstitutionally barred Elysium from zone A-l. However, I dissent from its speculative conclusion Elysium probably “would” have been denied a conditional use permit (CUP) had its application been considered as a permitted use in zone A-l. Indeed, what we have here is speculation on top of speculation on top of speculation. It is mere speculation Elysium would have been required to apply for a CUP if it had been considered a permitted use. If a CUP could have and would have been required, it is mere speculation the county would have denied Elysium that CUP. Furthermore, it is mere speculation the county’s decisions to require and to deny a CUP to Elysium could have withstood a challenge based on discriminatory treatment of a constitutionally protected activity *440involving freedom of association.1 The proper disposition of this case is to reverse and allow Elysium to be considered as a permitted use in zone A-l with whatever consequences that might have in the future under the conditional use permit process. What the trial court did and the majority opinion approves indeed places Elysium in a classic Catch-22.
I. The Judgment Should Be Reversed in Its Entirety as Speculative and Unsupported by the Evidence.
The outstanding and unresolved issue before this court is how the unconstitutional reclassification and banishment of the nudist colony to zone A-2 affects its subsequent classification status within zone A-l.
Under the terms of Los Angeles County Code section 22.08.140 a nonconforming use means “any use of land or property . . . which due to the application of this title or any amendment is a use not listed as permitted, accessory, director’s review, or subject to permit in the zone it which it is located.” (Italics added.) Under the majority opinion this broad definition includes uses subject to a CUP. Recreational uses under the new ordinance are a permitted use with an approved CUP (L.A. County Ord. No. 10,366.) and appellant’s use of its property as a nudist colony is a recreational use. Hence, appellant is a permitted use subject to a CUP and not merely a nonconforming use seeking “grace” from the county to remain in Zone A-l. This distinction is significant because no longer can the issues, arguments, and findings within the legal nonconforming use framework apply when considering a CUP or a permitted use in that zone.
It is one thing to make a finding the board of supervisors (Board) denied the nudist colony the “grace” of remaining as a nonconforming use within a zone where it didn’t belong. It is quite another to infer from that fact a finding the Board would have required and denied a CUP to an entity which was engaging in a preexisting conforming use within that zone.
*441There are two alternative classifications applicable under Los Angeles Ordinance No. 10,366: either appellant rebounds from its misclassification as a legal nonconforming use to its permitted land-use status prior to the 1971 amendments or to a conditional land-use status pursuant to the 1971 amendments. Under either alternative, appellant is classified as a permitted use as opposed to a legal nonconforming use.
A. As a Preexisting Permitted Use Elysium Was Not Required to Obtain a CUP.
If appellant was classified according to its pre-1971 status, then no CUP would be required. It is a fundamental principle of zoning law that a use which predates the enactment of a zoning ordinance can be continued without obtaining a conditional use permit although one is required for later uses. (Hagman et al., California Zoning Practice (Cont.Ed.Bar 1969) § 9.19, pp. 393-394.)
Appellant was established at its present location in 1968, several years before the enactment of the ordinance in 1971. As of 1970, the Los Angeles County Counsel classified appellant as a permitted recreational use in zone A-l. Therefore, when the ordinance was enacted all existing recreational uses, including appellant, were exempt from any duty to apply for a CUP. Appellant only became a legal nonconforming use in zone A-l by virtue of county code sections 22.08.140 and 22.24.150, both of which were found unconstitutional by the majority opinion in this case. Therefore, since these sections were stricken as unconstitutional the classification of appellant as a legal nonconforming use must also be disregarded. Consequently, appellant never lost its permitted use status, and does not need to apply for a CUP in order to continue its existence in zone A-l.
B. Even If a CUP Could Be Required It Was Error to Assume It Would Be Required and to Foreclose a Constitutional Challenge if It Were Required.
If appellant rebounded to a permitted use subject to an approved CUP, then it would be subject to the possibility it would be required to apply for a CUP. This does not mean, however, that the county inevitably would have subjected Elysium to this requirement. The evidence the trial court improperly excluded embraced expert testimony the county in fact did not require CUP’s from most, if not all recreational use landowners in zone A-l. If that is the pattern it is entirely possible the county would have allowed Elysium to continue its now permitted A-l use without requiring a CUP. In any event, *442it was not for the trial court to assume the county would require a CUP merely because it could.
Even if Elysium in fact were required to submit a CUP application, as the majority speculates it would, then appellant could argue this requirement was not uniformly enforced. Assuming the ordinance contained such a legal requirement, if in practice that requirement was not uniformly enforced against other recreational users then Elysium would have a valid constitutional argument it was singled out for impermissibly discriminatory treatment. (Snowden v. Hughes (1944) 321 U.S. 1, 8 [88 L.Ed. 497, 502-503, 64 S.Ct. 397]; Murgia v. Municipal Court (1975) 15 Cal.3d 286, 297-230 [124 Cal.Rptr. 204, 540 P.2d 44].)
C. Even If a CUP Were Required It Was Error to Assume It Would Be Denied and to Foreclose a Constitutional Challenge if It Were Denied.
Assuming a CUP were required and that requirement passed constitutional muster, it is by no means self-evident the county would deny that CUP. It is true Elysium stipulated the requirements for extending a legal nonconforming use and obtaining a CUP are basically identical. That does not mean the burdens and the presumptions about continuing existence are the same. Whether the county grants an application for extension of a nonconforming use is very much a matter of “grace.” Not so the decision whether to grant a conditional use permit for a permitted use, especially when a landowner was using the property for that purpose at the time the CUP requirement was imposed on the zone. It is presumed a nonconforming use will be amortized over time and eventually eliminated. In contrast, it is presumed a preexisting permitted use will continue to exist indefinitely, perhaps with some conditions designed to minimize adverse impacts on adjoining landowners. Elysium never had the opportunity to apply for a CUP and argue the merits under this framework.
If the county did deny Elysium a CUP outright Elysium would have a further opportunity to mount a constitutional challenge, an opportunity it is unconstitutionally denied by the majority’s affirmance of a hypothetical denial of a hypothetical CUP application. This constitutional challenge could be predicated on a claim the county discriminated against the nudist camp use by denying Elysium a CUP in circumstances where other uses have been granted CUP’s. This would qualify as unconstitutional discrimination for the same reason as requiring a CUP of Elysium but not of other recreational uses in the A-l zone. It singles out this constitutionally protected use implicating *443the right of freedom of assembly for discriminatory treatment. (Snowden v. Hughes, supra, 321 U.S. 1; Murgia v. Municipal Court, supra, 15 Cal.3d 286.) Furthermore, since Elysium’s use of this property as a nudist camp predates the CUP requirement, outright denial of a CUP could well support an action for a “regulatory taking.” (Nollan v. California Coastal Commission (1987) 483 U.S. 825 [97 L.Ed.2d 677]; First Lutheran Church v. Los Angeles County (1987) 482 U.S. 304 [96 L.Ed.2d 250, 107 S.Ct. 2378].)
I admit I am only speculating Elysium would have factual grounds for a constitutional challenge predicated on discriminatory denial of its CUP application. But the trial court and the majority opinion are speculating, too, if they are purporting to make the constitutionally required finding that such a challenge is doomed to failure. No evidence was submitted at the trial below to support (or refute) such a contention, because no CUP application had been filed or denied. It was irrelevant whether the county had granted CUP applications for permitted recreational uses in the A-l zone under circumstances analogous to Elysium’s situation for the simple reason Elysium was not applying for a CUP. It was applying for an extension as a nonconforming use. As such it was in a different, legitimately inferior classification—so long as that classification remained constitutional. Thus, until our court declared Elysium could no longer be considered as a nonconforming use, it was in no position to claim it was denied equal protection of the law in comparison with other permitted A-l uses applying for CUP’s in that zone. Until our decision Elysium was playing in a different ball game and could not complain it was being treated unfairly in the CUP game. It had no reason to submit evidence about the fairness of the CUP game in the trial court and will not have reason to do so unless and until it plays that game and loses.
II. Trial Court Erred in Failing to Make Findings on Material Issues.
Code of Civil Procedure section 632 requires a trial court to issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues. The court must make findings that are definite and certain, on all material issues. (Estate of McAfee (1960) 182 Cal.App.2d 553, 556 [6 Cal.Rptr. 79].)
As the majority finds, the issue of discriminatory treatment was not raised until after the trial. However, as pointed out above, discriminatory treatment in the grant or denial of CUP’s did not became an issue until after the trial. Moreover, a constitutional issue may be raised for the first time ever on appeal. (Hale v. Morgan (1978) 22 Cal. 3d 388, 394 [149 Cal.Rptr. 375, 584 *444P.2d 512]; People v. Allen (1974) 41 Cal.App.3d 196, 201 [115 Cal.Rptr. 839]; People v. Norwood (1972) 26 Cal.App.3d 148, 152-153 [103 Cal.Rptr. 7]; Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 5 [97 Cal.Rptr. 431].)
In the instant case, the trial court committed reversible error in failing to resolve the issue whether appellant was unconstitutionally singled out by the county’s discriminatory enforcement of the ordinance. The majority found the evidence of appellant’s consultant as immaterial because it did not relate to any issue raised by the pleadings. Thus the issue was never reviewed or resolved.
Insufficient evidence is a ground for reversing a trial court’s decision (Krause v. Apodaca (1960) 186 Cal.App.2d 413 [9 Cal.Rptr. 10], as well as a ground for granting a new trial. (Code Civ. Proc., § 657, subd. 6.) Even if we were to assume that all preexisting recreational uses were required to obtain a CUP to continue to operate in zone A-l, and none were granted a CUP, no evidence was presented to support this contention. In fact no other recreational landowner uses were mentioned in the record to say nothing of whether they subsequently applied for and were granted or denied a CUP.
It is significant and revealing the parties devoted only a page each in their lengthy briefs to the grounds on which the majority pins its affirmance in this case. This apparently was not viewed by either party as a serious argument for sustaining the trial court’s judgment. It is evident from the record the trial court’s speculations about what would have happened in the CUP process had Elysium filed a CUP application was very much an afterthought. The trial itself focussed on the constitutionality of consigning the nudist camp use to the A-2 zone and retaining it in A-l solely as a matter of “grace” in the status of a nonconforming use. Only after the trial was over and the evidence phase ended did the trial court indicate it was considering an alternative ground—a finding the county “would” have denied Elysium a CUP and thereby terminated its continued existence in the A-l zone even if “nudist camps” were a permitted use in that zone. Having belatedly introduced this issue, the court then denied Elysium’s attempt to introduce at least some evidence bearing on the constitutionality of such CUP denial if it were to have happened.
The trial court and the majority in this court cannot have it both ways. They cannot predicate the judgment on a ground not considered at trial and then deny a party the opportunity to introduce new evidence bearing on the constitutionality of that ground.
*445III. Conclusion
If a witness at trial attempted to engage in even one of the several levels of speculation the trial court and majority opinion resort to in this case, that witness would not get the first words out of his or her mouth before an objection was sustained. “Speculative, conjectural, that kind of guessing has no place in our courts.” And if the witness persisted in this line of testimony he or she would soon face a sharp admonishment from the trial judge for attempting to “speculate about what other people would have done if things had been different than they were.”
This kind of speculation has no more place as the basis of a trial court’s decision or an appellate opinion than it does in a witness’ testimony. The reasons the law looks to evidence and what actually happened rather than to speculation and what “would” have happened if the situation were different are dramatically illustrated by the instant case. When judges stray from the straight and narrow path of fact they often wander into a mine field of conjecture—with predictable consequences. Every speculation is based on one or more assumptions, some of which may remain concealed from the speculator. These assumptions, in turn, typically rest on further assumptions, even more likely to be overlooked by the speculator.
The trial judge here indulged in what he viewed as a single, simple speculation—what the Board would have done if Elysium had submitted a CUP application instead of a request for an extension to continue as a nonconforming use. The judge assumed that since the same criteria apply in both decisions the result would be the same. This ignores the fact—or assumes away—that other circumstances would be different including and especially Elysium’s status as a preexisting permitted use rather than a nonconforming use within the A-l zone. Thus, as we have seen, the trial judge’s simple speculation cannot be made without speculating about a series of other assumptions on which it rests. This speculation makes no sense at all unless:
(1) We assume that were nudist camps a preexisting permitted use within the A-l zone the county could under its current rules lawfully require a CUP.
(2) If it could require a CUP, we assume the county has a practice of requiring CUP’s from landowners in the A-l zone which engage in preexisting permitted recreational uses.
(3) If it has such a practice, we assume it actually decides to require Elysium to obtain a CUP for its preexisting permitted recreational use.
*446(4) If it decides to require a CUP, we assume it has a practice of denying CUP’s to other preexisting permitted recreational uses for the reasons it denied Elysium its request to remain as a nonconforming use, instead of imposing conditions on those other landowners to mitigate any adverse impacts.
(5) If it has such a practice, we assume it actually decides to deny a CUP to Elysium for its preexisting permitted recreational use.
(6) If the Board denies Elysium’s CUP application, we assume Elysium would not be able to demonstrate discriminatory treatment in the decision to require a CUP or in the denial of that CUP.
This is a healthy set of assumptions. None of them find any support in the record. Nor can any of them be satisfied without indulging in still further speculations which find no support in the record. Indeed, some of these assumptions are drawn into serious question by what the trial court improperly excluded from the record—evidence the county does not ordinarily require CUP’s of landowners engaged in uses in the same basic category as Elysium’s use of its property.
It is bad enough the trial court’s judgment, as affirmed by the majority in this court, rests almost entirely on hypothetical speculation rather than historical fact. But this vice acquires a constitutional dimension because it deprives Elysium of its constitutional right to assert a constitutional challenge to what might have been an unconstitutional decision by the Board if that decision had been made. If this last sentence sounds as if we have entered “never-never” land, that is because we have. In my view, we should return to the real world. If we did, the decision below would have to be reversed.
Appellants’ petition for review by the Supreme Court was denied October 3, 1991.
One of the unfortunate effects of the majority’s opinion is to deny Elysium the opportunity to raise a constitutional challenge to the hypothetical denial of the hypothetical CUP. Elysium would have grounds for challenging the requirement and denial of a CUP which are different from its challenge to the denial of its application for extension as a nonconforming use. Inexplicably, the trial court even refused Elysium’s tender of expert testimony which would have tended to support claims of discriminatory treatment by demonstrating other permitted recreational users in the A-l zone are not required to submit CUP’s. This evidence was hastily assembled when it became apparent after trial the court was considering the unique approach of speculating about what the county would have done with a hypothetical CUP application. Thus, it is merely speculative of what a full-fledged constitutional challenge to such a CUP denial might look like were Elysium allowed to present one. The trial court’s rejection of this evidence and the majority’s affirmance of that decision complete the Catch-22.