Ben Lomond, Inc. v. City of Idaho Falls

• Citation: 92 Idaho 595,448 P.2d 209
• Decision Date: 06 December 1968
• Docket Number: No. 10094,10094
• Parties: BEN LOMOND, INC., Plaintiff-Appellant, v. The CITY OF IDAHO FALLS, a Municipal corporation; Eddie Pedersen, as Mayor, and Jack A. Wood, Marilyn Smith, Melvin Erickson, Jim R. Freeman, Gordon L. Nelson and Dale D. Parish, as councilmen for the City of Idaho Falls, and Ray Browning, as Building Official of the City of Idaho Falls, Defendants-Respondents.
• Court: United States State Supreme Court of Idaho

Page 209

448 P.2d 209

92 Idaho 595

BEN LOMOND, INC., Plaintiff-Appellant, v. The CITY OF IDAHO FALLS, a Municipal corporation; Eddie Pedersen, as Mayor, and Jack A. Wood, Marilyn Smith, Melvin Erickson, Jim R. Freeman, Gordon L. Nelson and Dale D. Parish, as councilmen for the City of Idaho Falls, and Ray Browning, as Building Official of the City of Idaho Falls, Defendants-Respondents.

No. 10094.

Supreme Court of Idaho.

Dec. 6, 1968.

Petersen, Moss & Olsen, Idaho Falls, for appellant.

Albaugh, Bloem, Smith & Pike, Idaho Falls, for respondents.

McFADDEN, Justice.

Appellant, Ben Lomond, Inc., the plaintiff below, instituted this action initially for a writ of mandamus to compel the defendant City of Idaho Falls to issue a building permit for construction of a service station on its property. Appellant's property, the subject of this action, is a tract 110 125 with an adjoining easement. The tract fronts on what is now 17th Street of the City of Idaho Falls, and is a part of a larger tract initially owned by appellant. By amended pleadings appellant later sought declaratory relief against the City to determine the constitutionality of certain city ordinances, and for injunctive relief to compel issuance of building permit for either a service station or a drive-inrestaurant on its premises.

Very briefly, the facts disclosed by the record reflect that Norman Thompson, initially in February 1960 acquired an option on a ten acre tract of Bonneville County, adjacent to the city limits of Idaho Falls. (This tract was later annexed by the City on October 18, 1962 and is known as the Roy H. Bennett Shopping Center.) Thompson requested that the county zoning commission and county commissioners approve a proposed shopping center plan for this property. This plan envisioned the use of this litigated property as a service station. The county approved the pland and zoned the tract as a residential shopping center, although it refused to issue a building permit for the station. Because of pressing financial problems created by refusal of his financial backer to continue with the plan, Thompson transferred his interest in the option to appellant, of which Thompson is the president. Appellant sold the northwest part of the tract to McCarthy Investment Company, and a service station was constructed thereon. Later appellant sold the remainder of the tract except for a parcel 150 660 at the east of the ten acre tract to another individual; still later, appellant sold to Mr. Woodward all of the 150 660 except for the one tract of 110 125 now owned by it and the subject of this litigation.

Appellant assisted Woodward in presentation to the county of a development plan envisioning construction of a grocery store on this property, which if constructed, would have made it possible for appellant to transfer its 110 125 tract to a bank interested in building thereon, provided the grocery store was constructed. As a condition to granting the grocery store building permit, the city and county insisted on dedication of a 30 'planting easement' along 17th Street on appellant's property. This was granted and building permit issued to Woodward, but the permit was later canceled, and this proposal proceeded no further.

Between October 18, 1962, the date of annexation to the City, and August 22, 1963, when the city adopted Ordinance 1063, all of this property was unzoned insofar as the City was concerned. In February 1963 an option holder on this tract applied for a building permit for a drive-in restaurant. After inaction on the application for 60 days, the option was allowed to lapse. Following this, an oil company entered into an agreement to purchase the property, and tried to obtain a building permit on the property for a service station. This company also was refused a permit and that agreement fell through. Still another oil company entered into another agreement to purchase, conditioned on obtaining a building permit to construct a service station, and this too was unsuccessful, the mayor stating that he would issue no permit because of commitments to residents across the street. This latter oil company then agreed to lease the property at a monthly rental with gallonage allowance, provided appellant could obtain a building permit for a service station.

On August 1, 1963, appellant sought a building permit and right to cross the planting easement. No official action was taken by the City. The building inspector, a city employee, testified that the City was holding up all building permits until a new zoning ordinance was enacted, and that be had told the 'building official,' the witness's superior, there was no basis for holding up the permits. The building inspector was then given specific instructions to issue no permits on this property until it was zoned.

No action was taken on appellant's August 1, 1963 application for permit until the council meeting of August 22, 1963. At this meeting, the council, after suspending the rules (IC. § 50-2004) passed Ordinance 1063, amending a prior zoning ordinance. The council then considered and approved, over appellant's objections, a comprehensive plan for development of the shopping center, which plan left appellant's land vacant. The council then denied appellant's application for a building permit, without explanation, other than that it was done 'upon advice of counsel.'

Appellant commenced this action in September 1963, seeking the issuance of a building permit for a service station. Prior to tiral, appellant twice requested the City to amend the approved comprehensive plan to provide for construction of the service station with additional exit for egress over the plainting easement. These requests were denied, first under Ordinance 1063, and then later under Ordiance 1115, a new zoning ordinance adopted in August 1964, superseding Ordinance 1063.

In November 1963, appellant, in an attempt to settle the litigation, petitioned the City for a permit to build a drive-in restaurant on its land, without seeking any further access over the planting strip. This petition was denied.

Following trial of the case, the trial court held that under the provisions of the City's zoning ordinance, a service station could be constructed on appellant's land only if it is an integrated part of the adjoining shopping center, and since appellant's proposal required an access over the planting easement to the street, it was not an integrated part of the shopping center. The court also held that, under the zoning ordinance, a 'drive-in' restaurant was not a permitted use within the residential shopping center zone. The trial court found that appellant had been afforded due process of law during all the hearings and that the ordinances are valid exercises of the police power and are not unconstitutional.

Both Ordinances 1063 and 1115 of the City of Idaho Falls are zoning ordinances, the former amending a previous zoning ordinance, and the latter being a comprehensive ordinance. Both establish what is classified as a 'Residential Shopping Center Zone,' for areas of not less than two nor more than twenty acres. Before any area can be zoned under that classification, a development plan is to be submitted to and approved by the planning commission and city council. Permitted uses in the zone under Ordinance 1115 include a variety of retail establishments, office buildings, banks, 'Restaurants, cafes, tearooms * * * service stations,' and 'other uses similar to the foregoing * * *.' The record does not contain a copy of the Bonneville County zoning ordinance or regulations.

The property was annexed to the City on October 18, 1962. At that time the City had no applicable zoning ordinance, and only upon adoption of Ordinance 1063 on August 22, 1963, was there an applicable zoning ordinance enacted. In the meantime, numerous requests were made to the City by prospective lessees or purchasers from appellant for a building permit on the property, all of which were denied. Appellant's land was unzoned insofar as the City was concerned when its application for building permit and curb cut of August 1, 1963 was presented. The majority rule that land formerly within the county's jurisdiction, upon annexation comes into the city as unzoned land is succinctly stated in 101 C.J.S. Zoning § 134, p. 892:

'The zoning status of property annexed to a municipality depends on the provisions of the municipal ordinances, and in the absence of any provision covering the matter it has been held that unincorporated territory, on being annexed to a city, occupies the status of unzoned property regardless of its zoning status before annexation. County zoning regulations cease to apply to territory which has become part of a city.' (101 C.J.S. Zoning § 134, p. 892)

Louisville & Jefferson County Planning & Zoning Commission v. Fortner, 243 S.W.2d 492 (Ky.App.1951); City of South San Francisco v. Berry, 120 Cal.App.2d 252, 260 P.2d 1045 (1953); Ellish v. Village of Suffern, 30 A.D.2d 554, 291 N.Y.S.2d 178 (1968); Farley v. DeMuth, 399 S.W.2d 469 (Ky.App.1965). Annot. 41 A.L.R.2d 1463. Contra, Highland Village Land Co. v. City of Jackson, 243 Miss. 34, 137 So.2d 549 (1962).

Although none of the authority cited is binding on this court, it is our opinion that those cases holding that county zoning ordinances cease to apply to land annexed to a city state the better rule. Mississippi seems to be the only jurisdiction following the contrary rule. The Mississippi Supreme Court in Highland Village Land Co. v. City of Jackson, 243 Miss. 34, 137 So.2d 549 (1962), held that the county zoning ordinance must continue to govern the annexed land in order to protect the expectations of those persons who purchased their land before the annexation. We believe this is an insufficient reason to justify a continued application of the county law. The cases supporting the majority rule, on the other hand, rest upon the proposition that...