O'Connor v. City of Moscow

• Citation: 69 Idaho 37,202 P.2d 401
• Decision Date: 25 January 1949
• Docket Number: 7458
• Parties: O'CONNOR et al. v. CITY OF MOSCOW
• Court: United States State Supreme Court of Idaho

202 P.2d 401

69 Idaho 37

O'CONNOR et al. v. CITY OF MOSCOW

No. 7458

Supreme Court of Idaho

January 25, 1949

Appeal from District Court, Second Judicial District, Latah County Albert H. Featherstone, Presiding Judge.

Decree affirmed.

Tom Felton, of Moscow, for appellant.

The power of the City to adopt comprehensive zoning laws is based upon "police power", and prohibitive restrictions of such laws are valid if they bear a reasonable relation to public comfort, morals, safety, and general welfare, even though some individual may suffer an invasion of his property. Case Note: State v. Finney, 65 Idaho 630 at page 632, 150 P. 130; City of Idaho Falls v Grimmett, 63 Idaho 90, at page 96, 117 P.2d 461; Arnold v. City of Spartanburg, 201 S.C. 523, 23 S.E.2d 735, 740; City of Springfield v. Kable, 306 Ill.App. 616, 29 N.E.2d 675, 677; State v. Horn, 27 Idaho 782, 152 P. 275; Anderson v. Board of Commissioners, 22 Idaho 190, 125 P. 188.

Ray E Durham and Wynne M. Blake, both of Lewiston, for respondents.

The right to operate the business and to use the real property in the lawful manner in which it has been used by respondents is a right that runs with the property and the right to sell the business and have it conducted on the real property is a vested property right which cannot be arbitrarily destroyed. Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, at page 514, 19 A.L.R. 1387; State v. Cowen, 231 Iowa 1117, 3 N.W.2d 176, at page 180; Iford v. Nickel, Tex.Civ.App., 1 S.W.2d 751, at page 753; Groenendyke v. Fowler, 204 Iowa 598, 215 N.W. 718; Kneebs v. Sioux City, 156 Iowa 607, 137 N.W. 944, at page 945.

Hyatt, Justice. Holden, C. J., Givens, J., and Taylor, District Judge, concur. Sutphen, District Judge, dissenting.

OPINION

Hyatt, Justice.

Respondents are, and since 1938 have been, the owners of certain real estate and a business building thereon, located along Main Street, but south of First Street, in the business section of the City of Moscow, in which they now do, and have for some several years last past, conducted a combined pool hall, card room, and retail beer parlor.

On April 21, 1947 said City adopted an ordinance providing that from and after the effective date thereof, it should be unlawful to open or operate any new or additional place of business located on First Street, or on any street south of First Street, or outside the business zone in said City, in which any pool, billiard, card, or dice game is played, or in which draft beer by the drink or liquor by the drink is sold, or in which any coin operated amusement device, as defined by H.B. 43, 1947 Legislature, Laws 1947, c. 151, is maintained or operated. Said ordinance further provided:

"Any change of ownership of an existing business of the type herein defined shall be deemed a new or additional business."

The express purpose of the ordinance is to confine such businesses to a limited area in order to make policing thereof easier and to promote the peace, morals, safety, health and general welfare of the people of Moscow.

After the passage of said ordinance, respondents desired and attempted to sell their business, and in connection with a sale, to lease their premises for the conduct therein of the business by a prospective purchaser, but they have been unable to do so, since by reason of said provision above quoted, their optionee, a bona fide prospective purchaser, refused to exercise his option to so purchase and lease.

Respondents then brought this suit for a declaratory judgment to have said provision adjudged void, contending that the same is an arbitrary and unreasonable exercise of the police power of the City and deprives them of their property without due process of law.

Trial was had to the court upon stipulated facts which are substantially as above set forth. Decree was entered declaring said quoted provision void and of no effect, and enjoining the City from applying the provisions of said ordinance to respondents' successors in interest.

This appeal is from the decree and the assignments of error present two questions:

(1) The validity of said provision of the ordinance.

(2) Whether respondents are such real parties in interest that they can maintain this suit.

We will first consider the ordinance as a zoning scheme since under its general plan the continuation of non-conforming uses is permitted.

We are not here concerned with the constitutionality or validity of the ordinance as a whole, nor whether it was duly and regularly passed pursuant to the laws of this state relating to zoning or whether it is "piecemeal" zoning, Anno. 165 A.L.R. 823, or whether under the circumstances it is reasonable to set up a limited zone within a general business district.

Since non-conforming uses are permitted to continue, we are not called upon to decide the right, if any, of the City to suppress entirely and uniformly within a certain area, if it should see fit to attempt to do so, businesses of the type conducted by respondents. So long as appellant permits the operation of such businesses, by licenses and other regulations, they must for the purposes of this case be treated as any other lawful businesses.

Nor are we here involved with an ordinance directed against nuisances since under the stipulation, the business of respondents is not a nuisance.

Zoning ordinances generally look to the future and while preventing the establishment of lawful businesses, yet avoid violations of the due process clauses of the State and Federal Constitutions by permitting existing non-dangerous businesses to remain. Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14, 19; 58 Am.Jur. 1021, 1022; Thompson on Real Property, Perm.ed., Vol. 10, Sec. 5617, page 713 and Sec. 5619, page 715; Anno. 86 A.L.R. 678; Anno. 117 A.L.R. 1136; and Cal.Jur., 10 Year Sup., Vol. 12, page 160.

Zoning regulations are divided into two classes; first, those which regulate the height and bulk of buildings within certain designated districts, and second, those which prescribe the use to which buildings within certain designated districts may be put. 12 Cal.Jur., 10 Year Sup., page 141. We are here concerned with the second classification.

An ordinance which prohibits the continuation of existing lawful businesses within a zoned area is unconstitutional as taking property without due process of law and being an unreasonable exercise of the police power. Jones v. City of Los Angeles, supra. In that case the City by an ordinance provided that it should be unlawful to erect, establish, maintain or conduct any hospital, asylum, sanitarium, home, retreat or other place for the care and treatment of insane persons, persons of unsound mind, or persons affected by or suffering from mental or nervous diseases except within certain permitted areas. Appellants there were owners of four sanitariums within an area, which by the ordinance, were prohibited from further operation. The court upheld the ordinance so far as new businesses were concerned but as to businesses in existence, ruled the ordinance inoperative since it would be taking appellant's property without due process of law. The court said:

"It therefore appears that the instant case involves a situation materially different from that presented in the usual zoning case. The exercise of power in this instance is, on the whole, far more drastic than in those in which a mere right to engage in a particular business is restricted. We are asked to uphold a municipal ordinance which destroys valuable businesses, built up over a period of years. If we do so on the ground that this is a proper exercise of the police power in the enactment of zoning legislation, then it follows that the same thing may be done to apartment houses, flats, or stores.

"The establishment of many lawful and not dangerous businesses in a city would then become an extremely hazardous undertaking. At any time, in pursuance of a reasonable plan for its future development, the city could prohibit the continuance of the businesses, and make property valueless which was previously constructed and devoted to a useful purpose.

"It may well be that in the course of years one of the outlying permitted districts in the present scheme will become residential in character, and will, by another ordinance, be placed in the prohibited area. If the plaintiffs, at great expense, reestablish themselves in that district, they might be pursued and again eradicated. All this is to be justified under the police power as a proper taking of private property for public use, without compensation. The approval of such a doctrine would be a blow to rights in private property such as this court has never before witnessed. Only a paramount and compelling public necessity could sanction so extraordinary an interference with useful business."

No case has been called to our attention and we are unable to find any on the precise point here involved. We are not unmindful that zoning ordinances contemplate the gradual elimination of non-conforming uses within the zoned area and such elimination may be accomplished as speedily as possible with due regard to the special interests of those concerned; that where suppression is not feasible without working substantial injustice, the accepted method of accomplishing the result has been said to be that the non-conformity, in no case, will be allowed to increase but will be permitted to continue until some change in the premises or in the use thereof is contemplated by the owner, when, insofar as expedient, the authorities take advantage of this fact to compel a lessening or complete suppression of the non-conformity. For a statement of these principles see Thayer v. Board of Appeals of City of Hartford, 114...