Ready-To-Pour, Inc. v. McCoy, READY-TO-POU
| Decision Date | 03 July 1973 |
| Docket Number | READY-TO-POU,INC,No. 10713,10713 |
| Citation | 511 P.2d 792,95 Idaho 510 |
| Parties | , an Idaho corporation, Plaintiff-Respondent, v. Leonard B. McCOY, as Building Inspector of the City of Ketchum, et al., Defendants-Appellants, and W. E. Murphy et al., Third Party Intervenors and Appellants. |
| Court | Idaho Supreme Court |
E. Lee Schlender, Ketchum, for defendants-appellatns.
Alexanderson, Davis, Rainey & Whitney, Caldwell, for third party intervenors-appellants.
George R. Kneeland, Ketchum, for plaintiff-respondent.
This case involves a Ketchum zoning ordinance establishing an industrial district and an attempt to locate a concrete batch plant therein. The City refused to issue a permit for the construction of the plant and thereafter the City eliminated the industrial zone. The trial court found that the City had acted capriciously and arbitrarily in refusing to issue a building permit. The court issued a writ of mandate commanding the issuance of the permit. We affirm.
On July 6, 1965 the City of Ketchum adopted a comprehensive zoning ordinance (Ordinance No. 85), which, among other set aside and authorized a six acre parcel for and as an industrial district. A portion thereof provided:
'I. INDUSTRIAL DISTRICT
'(1) Any industrial or manufacturing operation which does not create danger to the safety of employees and residents in surrounding areas and does not cause substantial amounts of offensive noise, vibration, smoke, odors, heat, glare, or other objectionable influences to disseminate beyond the boundaries of the I District;
'(3) The following uses shall be subject to the provisions of Section XI of this ordinance: automobile wrecking yards; junk yards; dumping or reduction operations; rendering plants; or any other use which might be especially obnoxious, offensive, hazardous or detrimental to the public health and welfare of the residents of the City of Ketchum.'
The next following section of the ordinance enumerated certain uses that would only be permitted within that industrial district after they had been specifically approved by both the city planning and zoning commission and the City Council. The relevant portions of that section provide:
'USES PERMITTED BY SPECIAL REVIEW
'Due to their particular features, which may be injurious to the health, safety or welfare of inhabitants lcoated nearby, depending on environmental measures taken in each instance, the following uses shall be allowed in the designated zones only upon favorable recommendation of the Planning and Zoning Commission (with additional controls if necessary) and approval by the City Council:
'(3) Reduction operations, dumping areas and rendering plants in the I District, provided:
'(a) a site plan of the proposed use is furnished; and
'(b) a written statement is provided explaining the methods which will be used to control adverse effects of the operation.
* * *'
A later portion of the comprehensive ordinance, Section 19.2 as it was in force in 1969 provides:
During the summer of 1969 Ready-to-Pour, Inc. purchased three lots in the industrial district for its concrete batch plant. The was then temporarily located in Sun Valley, approximately one mile distant. On July 5, 1969, Ready-to-Pour applied for a building permit pursuant to Section 19.2 supra. On July 9, 1969 the City Council denied that application. On July 16, 1969, Ready-to-Pour obtained an alternative writ of mandate directing Leonard B. McCoy, et al. (hereinafter the City) to show cause why they should not be ordered to issue a building permit for construction of the concrete batch plant. The City filed an answer to said alternative writ and certain citizens of Ketchum were granted leave to intervene as third party petitioners.
The parties then agreed to resubmit Ready-to-Pour's application to the City Council. The City Council heard testimony from many witnesses and viewed Ready-to-Pour's batch plant operation in Sun Valley. The City Council denied the application on the following grounds:
'1. That the proposed operation will cause substantial amounts of offensive noise, dust, increased traffic and other objectionable influences beyond the boundaries of the Industrial District.
'2. That the proposed operation would be especially obnoxious, offensive and detrimental to the public health and welfare of the residents of the City of Ketchum.
Minutes, Special Meeting, Ketchum City Council July 24, 1969.
On September 30, 1969, following notice and two public hearing the City Council adopted Ordinance 133 eliminating the industrial zone.
A trial was had in the district court on the issues thus joined. The trial court found and concluded that the City Council acted arbitrarily and capriciously and had abused its discretion in refusing to issue the building permit to Ready-to-Pour. The court issued a writ of mandate directing the City to grant the building permit. The City did not grant the permit as directed and thereafter, on May 18, 1970, the district court issued an order enjoining the City from taking any action against Ready-to-Pour in the event Ready-to-Pour should proceed with construction of its concrete batch plant.
The district court found that the proposed batch plant was a manufacturing operation as defined by Section 10.1(1) and was not dumping, reduction or rendering operation within the meaning of Section 10.1(3).
The trial court reasoned that the proposed plant was not a nuisance per se but that the plant might constitute a nuisance per accidens. The court stated that, even if the plant were found to be a nuisance per accidens, the City could not refuse to issue the permit on that ground because the elements of the prospective nuisance could not be factually determined at the time of the permit application.
In its memorandum opinion the trial court stated that Ordinance 133, eliminating Ketchum's industrial district, had no bearing on Ready-to-Pour's application because Ready-to-Pour's rights should be determined under the law in effect at the time the application was made.
We consider first the threshold question as to whether the applicant's rights are to be measured under Ordinance 85 in effect at the time of the application, or under Ordinance 133 in effect at the time this case went to trial. Idaho has adopted the minority view that the applicant's rights are measured under the law in effect at the time of the application. See: McQuillin, The Law of Municipal Corporations, § 25.155 (3d ed.1965). In Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 601, 448 P.2d 209, 215 (1968), we stated:
'At least in those cases like the present one, in which no zoning ordinance was pending at the time an application for a building permit is filed, it is our opinion that an applicant is entitled to a building permit upon compliance with the then existing ordinance.'
The elimination of the industrial zone in Ketchum by Ordinance 133 did not alter the applicant's rights to a building permit.
We turn now to the trial court's finding that the City abused its discretion in denying the building permit sought by Ready-to-Pour. The minutes of the City Council's special meeting on July 24, 1969, supra, set forth the three reasons for denial of the permit. We deem it necessary to review the evidence before the trial court. Two members of the City Council testified on behalf of the City. Their testimony demonstrates that they denied Ready-to-Pour's application because they felt the initial creation of the industrial zone was a mistake and because the applicant's batch plant should be banned from the City regardless of whether or not it conformed to the zoning ordinance. As an example, Witness Glenn, a City Councilman, testified as follows:
'Q. Am I correct in coming to the conclusion from what you are saying that, in fact, your objection to granting the permit is based upon an objection to having this plant in Ketchum, period, regardless of what the zoning ordinance might say about it?
Similarly, Witness Jewell, also a City Councilman, was questioned and answered as follows:
'Q. Ben, is it-was it your opinion on July 24th when you voted against the issuance of this permit that, in fact, the industrial area was a bad deal-a bad idea in Ketchum?
'A. Well, I don't think it's been my opinion and-that the area never was big enough and probably never, even in the beginning, should ever been designated an industrial area, * * * is certainly not an industrial site.
'Q. So, in fact-I think I am repeating myself-but, in fact, then, it was the size of this area and the fact that you didn't think it was suitable for industrial that gave rise to your voting against it?
Uncontroverted testimony indicated that there were other batch plants located in the area; that the applicant's property was located almost immediately adjacent to the railroad right-of-way; that the City itself maintained a heavy equipment storage yard near applicant's property; that located immediately adjacent to applicant's property is a business facility...
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Case List
...N.Y.S.2d 492 (1991) Raum v. Board of Supervisors of Tredyffrin Township , 29 Pa. Commw. 9, 370 A.2d 777 (1977) Ready-to-Pour v. McCoy , 95 Idaho 510, 511 P.2d 792 (1973) Renieris v. Village of Skokie , 85 Ill. App. 2d 418, 229 N.E.2d 345 (1967) Resolution Trust Corp. v. Town of Highland Bea......