Gibbons & Reed Co. v. North Salt Lake City

• Decision Date: 07 September 1967
• Docket Number: No. 10662,10662
• Citation: 19 Utah 2d 329,431 P.2d 559
• Parties: d 329 GIBBONS & REED COMPANY, a corporation, and Gibbons & Reed Concrete Products Company, a corporation, Plaintiffs and Respondents, v. NORTH SALT LAKE CITY, a municipal corporation, Defendant and Appellant.
• Court: Utah Supreme Court

Page 559

431 P.2d 559

19 Utah 2d 329

GIBBONS & REED COMPANY, a corporation, and Gibbons & Reed Concrete Products Company, a corporation Plaintiffs and Respondents, v. NORTH SALT LAKE CITY, a municipal corporation, Defendant and Appellant.

No. 10662.

Supreme Court of Utah.

Sept. 7, 1967.

Thomas, Armstrong, Rawlings & West, Salt Lake City, for appellant.

Bryce E. Roe, Salt Lake City, for respondents.

CALLISTER, Justice.

North Salt Lake City, a municipal corporation, appeals from a judgment prohibiting the enforcement of two of its zoning ordinances and one excavation ordinance, to compel the discontinuance of the use of plaintiffs' property for sand and gravel operations. The primary question presented concerns the validity of the provisions of the ordinances as applied to plaintiffs' operations on the property herein referred to as parcel D.

The property involved in this dispute consists of real property situated within the municipal boundaries of North Salt Lake City. It is dividend into four parcels, and identified here by the letters A, B, C, D. Parcel D borders a subdivision known as Hillside Gardens which consists of 140 lots. Prior to 1957 no zoning ordinances were in effect which related to the use of the above parcels. On August 5, 1957, after proper notice and a public hearing, North Salt Lake City enacted the 'original Zoning Ordinance.' Under its provisions parcels A, B and C were located in a zone designated for forestry and natural resource use, called 'F--1.' Excavation of sand, gravel, and other related materials are permitted in F--1 zones. Parcel D was located in an area designated for residential use, called 'R--1.' Excavation of sand, gravel, and other related materials are not permitted in R--1 zones.

At the time of the enactment of that original zoning ordinance, plaintiffs were the owners of parcel A. Parcels B and D were owned by the Gibbs family. Plaintiffs acquired parcels B and D in 1959 from the Gibbs family, parcel D by purchase and parcel B by lease. At the time of the transfer plaintiffs were aware of the provisions of the 1957 zoning ordinance, but apparently bought the land relying on the state statute which provides that the zoning authority shall not deprive the owner of property of its use to which it was lawfully devoted prior to the enactment of the ordinance. ¹

On April 3, 1961, North Salt Lake amended its zoning ordinance and enacted North Salt Lake City Ordinance No. 52, which changed the zoning classifications of parcels B and C from F--1 to R--1 thus placing them in zone prohibiting the excavation of gravel materials. Then on January 15, 1962, North Salt Lake passed Ordinance No. 60 which contains restrictive provisions and regulations allowing the city council and building inspector to approve or disapprove rehabilitation plans and fix amounts of bonds.

Despite the language of the above three ordinances, the plaintiffs continued their sand and gravel operations until August 18, 1964, when the defendant city served them with a 'Stop Order' causing plaintiffs to discontinue excavation and crushing operations. Plaintiffs then brought suit asking that the zoning and building ordinances relied upon by the defendant in issuance of the 'Stop Order' be declared invalid as they applied to their operations. After an extended trial, the lower court found that: both the zoning ordinances of North Salt Lake City were invalid as to parcels B, C, and D and unenforceable insofar as they prohibited excavation of sand, gravel and other related materials and prevented the maintenance of haul roads. The court observed that, by virtue of the usage to which the property had been put both prior and after the enactment of the zoning ordinances, any prohibition of use would be unreasonable and confiscatory and would result in the taking of private property without due process, which would be violative of both the state and federal constitutions and also Utah Code Ann. § 10--9--3 (1953). The court also concluded that with respect to the properties of plaintiffs (B and D) that North Salt Lake Excavation Ordinance No. 60 was invalid and violative of the equal protection and due process clauses of both the state and federal constitutions since it placed upon the property owners the unreasonable burden of furnishing detailed rehabilitation plans prior to the time at which the character of the ground minerals could be known and because it permitted the city council and building inspector to approve or disapprove rehabilitation plans and fix amounts of bonds without adequate standards having been established.

From that judgment the defendant seeks a reversal. This appeal only involves two parcels, B and D. Plaintiffs stipulated that they no longer had any interest or claim in parcel C and defendant concedes in its brief that the only property which the zoning ordinances are in issue with here is parcel D. Defendant, however, still contends the excavation ordinance is applicable to both B and D.

We first address ourselves to the validity of the 1957 zoning ordinance as it applies to parcel D. The lower court found that parcel D was used for excavation of sand and gravel and other related materials at the time the 1957 zoning ordinance was enacted, and has continued at all times since. Plaintiffs' interest is more appropriately called a nonconforming use since it existed on the effective dates of the 1957 zoning restrictions and has continued since that time in nonconformance to the ordinance.

The defendant contends the 1957 zoning ordinance is not unconstitutional under either federal or state constitutional prohibitions against taking of property without due process of the law. However, since we find this case is determinative under the state statute it is unnecessary for us to consider whether due process forbids a forced discontinuance of the plaintiffs' use.

The power of North Salt Lake to zone is derived from the state. ² The right to regulate the use of property within municipal limits is limited for the purpose of promoting the health, safety, morals, and the general welfare of the community. The statutes provide that the regulations shall be made in accordance with a comprehensive plan to promote health and the general welfare of the community. They also provide that such regulations 'shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the city.'

The defendant city contends that the 1957 zoning ordinance which prohibits gravel operations in parcel D was a valid exercise of this police power since the ordinance was substantially related to public health, safety, morals and general welfare. Defendant city contends that a gravel pit would lower the value of the homes in the subdivision located just north of parcel D. It also contends that the dust problem was a motivating factor in enacting the ordinance and that the reclassification of parcel D was not arbitrary since that property was the logical choice based on natural boundaries. Defendant stated in the brief that the parcel was never intended to be used for gravel operations and that the owners of homes in the subdivision had relied on such lack of intent. Defendant also cites several cases which contain words to the effect that courts should defer to the zoning authority since zoning is a legislative function in which the authority has a wide latitude of discretion, and that if it is reasonably debatable that the zoning ordinances promote the general welfare the court should not substitute its judgment for that of the zoning authority. Marshall v. Salt Lake City, 105 Utah 111, 141 P.2d 704, 149 A.L.R. 282; Phi Kappa Iota Fraternity v. Salt Lake City, 116 Utah 536, 212 P.2d 177; Gayland v. Salt Lake County, 11 Utah 2d 307, 358 P.2d 633; Dowse v. Salt Lake City Corporation, 123 Utah 107, 255 P.2d 723; Walton v. Tracy Loan & Trust Co., 97 Utah 249, 92 P.2d 724; Naylor v. Salt Lake City Corporation, 17 Utah 2d 300, 410 P.2d 764.

Although the wisdom and the nature of zoning power has been left in the discretion of the city authorities, the courts may still intervene and set aside their action if such ordinances are confiscatory, discriminatory, or unreasonable. See Marshall v. Salt Lake City, supra; Dowse v. Salt Lake City Corp., supra. While the precise question presented here has not heretofore been considered by this court, the rules applicable to nonconforming uses are well established. In applying the rules of zoning law, the facts in each particular case must be taken into consideration. Herman v. Village of Hillside, 15 Ill.2d 396, 155 N.E.2d 47 (1959); County of Du Page v. Elmhurst-Chicago Stone Co., 18 Ill.2d 479, 165 N.E.2d 310 (1960). The cases cited by the defendant do not involve diminishing asset property like we have here. They do not involve zoning action which makes almost useless otherwise valuable land. The case here is not the usual case of a business conducted within buildings, nor is the land held merely as a site or location whereon the enterprise can be conducted indefinitely with existing facilities. In a gravel operation the land itself is a material or resource. It constitutes a diminishing asset and is consumed in the very process of use. Under these facts the ordinary concept of 'use' must yield to the realities of the business.

We find sufficient evidence in the record to support the trial court's findings that the ordinance of 1957 which prohibits quarrying operations on parcel D is of no real gain to the public in general. The record shows no foreseeable future need for residential property in that area. The lower court evidently did not find any substantial evidence to show any apparent dust problem specifically attributed to the quarrying operations. Unless the dust becomes...