Kubby v. Hammond
| Decision Date | 27 September 1948 |
| Docket Number | 4980 |
| Citation | 68 Ariz. 17,198 P.2d 134 |
| Parties | KUBBY v. HAMMOND |
| Court | Arizona Supreme Court |
Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.
Judgment reversed, and cause remanded with direction to dismiss complaint.
William C. Eliot and John M. Levy both of Phoenix, for appellant.
Jennings Strouss, Salmon & Trask, of Phoenix, for appellee.
This is an appeal from a judgment perpetually enjoining and restraining the defendant, David Kubby (appellant), from constructing or operating an automobile wrecking plant on certain premises owned by him at 1333 East Washington Street in Phoenix, Arizona.
The essential facts are these: Defendant for some 2 1/2 years prior to this litigation had been operating an automobile wrecking plant, as well as dealing in used cars, under a state license, at his established place of business, 1330 East Washington Street. In an expansion program, defendant acquired three lots (1333 East Washington Street) which lie directly south and across the street from his principal place of business. On May 20th, 1946, the division of Motor Vehicles, Arizona Highway Department, issued to defendant supplemental licenses to operate branches of both of said businesses at this newly acquired location. Immediately thereafter he moved a half dozen cars thereon, which were intended for dismantling and sale of their parts. When notices were posted that defendant had applied for a permit to construct a temporary tin and wood office building on these premises plaintiff Hammond (appellee) on May 25, 1946, filed suit seeking an injunction to restrain defendant from constructing a building to be used as an automobile wrecking plant or from using the premises for such purposes. The gravamen of the complaint was that plaintiff is the owner of and has an established residence upon an adjoining lot lying west of defendant's premises, that all of this area was zoned for "Business B District Uses" by ordinance No. 1564 adopted by the City of Phoenix on June 25, 1930, and that the operation of the business proposed by defendant is in violation of and is not permitted under Section X of said zoning ordinance. Furthermore it was alleged that loud noises will result from the proposed use of said premises which will interfere with plaintiff's peaceable enjoyment of his home and cause a depreciation in the value thereof.
On July 9, 1946, the City Commission of Phoenix amended this zoning ordinance so as to place the defendant's property in a "Business A Zone", and concededly a wrecking yard could not thereafter lawfully operate in such zone unless the business had been commenced prior to the adoption of the amended ordinance.
Thereafter on August 12, 1946, plaintiff filed an amended complaint in two counts. The first count alleged substantially the same facts as the original complaint but added the fact of rezoning the area to "Business A Uses." The second count alleged the defendant's proposed business would constitute a nuisance. The prayer was for injunctive relief only, no damages being asked.
Defendant's motion to dismiss the amended complaint was denied and upon the issues framed by his answer this equity matter came on for trial before the court sitting with a jury. The two interrogatories submitted to them were answered by the jury favorably to the plaintiff's contention and after a denial of defendant's motions for judgment notwithstanding the verdict and for a new trial, the court entered judgment for plaintiff and the matter is now brought before us for review.
The trial court made no findings of fact or conclusions of law, though it adopted the jury's answers to the interrogatories. In the final analysis the decision was necessarily the decision of the court as the verdict of the jury is only advisory in an equity matter. Section 21-1010, A.C.A.1939.
It is, of course, the universal rule that all presumptions are in support of the judgment or decree, and the appellate court in reviewing the sufficiency of the evidence to sustain a verdict or judgment will consider the evidence in the light most favorable to the successful party. Commercial Securities Corp. Consol. v. Babbitt Motor Company, 36 Ariz. 438, 286 P. 820; New York Indemnity Co. v. May, 37 Ariz. 462, 295 P. 314; Spann v. Meidinger, 37 Ariz. 480, 295 P. 321.
Where findings of fact have not been made the rule is that the judgment should be affirmed if there is any theory of the case upon which such judgment can be sustained and any reasonable evidence in the record supporting such theory. State Tax Comm. v. Magma Copper Co., 41 Ariz. 97, 15 P.2d 961; Morgan v. Krook, 36 Ariz. 133, 283 P. 287.
While the defendant (appellant) has presented some eleven assignments of error and seven propositions of law, we believe that these may be resolved into three questions: (a) Was the conduct of defendant's business of operating an automobile wrecking yard at 1333 E. Washington Street in violation of Section X of Phoenix City Ordinance 1564? If this question be answered in the negative then (b) was such business actually in operation between May 20, 1946, and the time when the area was rezoned on July 9, 1946, for "Business A District Uses"? (c) does the evidence sufficiently establish defendant's business as a nuisance? We shall consider these problems seriatim.
Section X of ordinance No. 1564 of the City of Phoenix reads as follows:
It is plaintiff's theory that the operation of an automobile wrecking yard constitutes an industrial pursuit or use as distinguished from the various businesses or commercial pursuits therein specifically referred to. On the other hand the defendant contends that his business falls within the phrase "other commercial activities."
The word "industrial" has various meanings, and some definitions can be found that are favorable to either party. We believe however that in construing an ordinance the sense in which words are used is more important than the dictionary meaning. Jennings v. Calumet National Bank, 348 Ill. 108, 180 N.E. 811. "Industrial Activity" commonly means the treatment or processing of raw products in factories. North Whittier Heights Ass'n v. National Labor Relations Board, 9 Cir., 109 F.2d 76-80. The real objective of defendant's business is the retail sale of second hand parts. It seems to us that "wrecking" a tearing-down process is practically the opposite of "industrial or manufacturing purposes" referred to in the ordinance heretofore quoted. To dissemble and wreck used automobiles requires but little skill while the manufacturing process generally speaking involves skill of a high degree.
An analysis of the quoted ordinance indicates that business "B" districts are general commercial districts and any commercial use not excluded therefrom by being specifically assigned to an industrial district is included. The doctrine of ejusdem generis has no application.
We deem it significant that for seventeen years the officers of the City of Phoenix charged with construing and administering the ordinance in question have held that defendant's type of business was permitted in "Class B Business Districts." The record before us discloses several wrecking yards in such areas as well as the city car barns which are diagonally across the street from plaintiff's residence. In any doubtful case the court should give great weight to the contemporaneous construction of an ordinance by the officials charged with the duty of enforcing it. Sine v. City of Le Grande, 136 Or. 568, 300 P. 348; City of Sedalia ex rel. Ferguson v. Shell Petroleum Corp., 8 Cir., 81 F.2d 193, 106 A.L.R. 1327; Wilson et al. v. Behr, 57 Ohio App. 117, 12 N.E.2d 300; Offhouse v. State Board of Education et al., 131 N.J.L. 391, 36 A.2d 884; 37 Am.Jur.Mun. Corp. Sec. 187, p. 828.
Zoning ordinances, being in derogation of common law property rights, will be strictly construed and any ambiguity or uncertainty decided in favor of property owners. City of Little Rock v. Williams, 206 Ark. 861, 177 S.W.2d 924; 440 E. 102nd St. Corp. v. Murdock, 285 N.Y. 298, 34 N.E.2d 329.
The trial court did not expressly rule upon the legal question whether or not defendant's use of his newly acquired premises violated City Ordinance No. 1564, but inasmuch as only the interpretation of an ordinance is presented we are in nowise circumscribed by any presumption as to the trial court's views of the matter.
We answer the first question in the negative and hold as a matter of law that the general type of activity carried on by defendant in the operation of a wrecking yard...
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Rotter v. Coconino County
...regulations are in derogation of common law property rights, they are strictly construed to favor the property owner. Kubby v. Hammond, [68 Ariz. 17, 198 P.2d 134 (1948) ]. Although many jurisdictions except from this general rule regulations governing existing uses and construe them to res......
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Scenic Arizona v. City of Phoenix Bd. of Adjustment
...the agency's interpretation of a particular provision is not longstanding. See id. at 212, 772 P.2d at 35; cf. Kubby v. Hammond, 68 Ariz. 17, 21, 198 P.2d 134, 137 (1948) (deferring to the agency definition when the word “industrial” had been construed the same way by the agency for sevente......
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Edwards v. Allen, No. M2004-01944-COA-R3-CV (TN 11/28/2005)
...cases to demand strict compliance with statutory requirements concerning the zoning aspect of the police power. In Kubby v. Hammond, 68 Ariz. 17, 22, 198 P.2d 134, 138, we "Zoning ordinances, being in derogation of common law property rights, will be strictly construed and any ambiguity or ......
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Kahn v. Thompson
...its judgment and discretion in determining the scope of the ordinance since it is charged with enforcing it. See Kubby v. Hammond, 68 Ariz. 17, 198 P.2d 134 (1948). Because the Division had discretion to determine whether Kahn had stated a colorable claim, and obviously exercised that discr......