*1 municipal corpora- PHOENIX, CITY OF City Mayor tion; Williams, Jack Joseph Phoenix; Cordova, Dr. Val Johnson, Greer, Wesley David P. M. G. Jones, H. Clarence North and Faith I. City Shivvers, Councilmen Planning Beatty, Phoenix; Di- John W. Phoenix, City and F. C. rector of the Hurst, Building Inspector of the Phoenix, Appellants, Fehlner, wife; his FEHLNER and Pola

Paul Kastner, Jerry Anita D. Kastner G. Ashcraft; wife; L. F. L. his Clarence wife; Byron Mills, his Mills and Thelma S. Simonson, wife; Meryl his Simonson and LaVerne, Gill, Harry Naomi Gill and S. wife; Lou- Clements and E. his Howard wife; Clements, Bil- William M. ella Mullen, al., lings; Mary a widow et F. Appellees.

No. 6648.

Supreme of Arizona. Court

En Banc.

July 13, 1961.

Rehearing Oct. Denied appealed judg-

Phoenix from that has ment. April 19, Phoenix

On approximately annexed an area containing *2 square parcels 4.9 miles which the here- only were a small fraction. study After zon- planning extensive department prepared city of the a tenta- map presented tive which it zoning board. The then held zoning board public hearings extensive and after some adjustments plan on- tentative based objections in- holders and gathered formation hearings zoning board city submitted to the council' comprehensive zoning plan a for the entire hearings, area. The council held further changes, and made some additional them plan modified enacted as which Ordi- Eliot, Atty., City Merle L. C. William objections parties nance G-133. The Hanson, Mitchell and Anis Charles fully to this action-were considered at the Attys., Phoenix, ap- Filler, City for Asst. hearings by held council and its pellants. zoning agencies. Stuart,

Gorodezky, Phoenix, Mitchell & time of annexation At the the two and appellees. strip block-long one-half in issue was occu- primarily by residential

pied uses although UDALL, Justice. map mixed area. it was somewhat existing uses offered evidence shows that challenge involves case This side of Thomas from north 26th Street City Phoenix, Zoning Ordinance entirely Street was to 28th ex- residential properties fronting applied small cept one contractor’s office and a Place from 25th to 28th Road Thomas Queen ice-cream stand. Dairy The other The trial held the ordi- Street. the north side from half block of 25th properties un- Place applied was to'these nance The,, except vacant 26th Street was for a small defendant constitutional. sitting “I imagine people 26th and can’t office corner northwest by happen.” Thomas and letting side of On the this south Thomas. one half Street 25th to 28th from Place appears Maricopa further uses to residential was devoted County Zoning area covering primarily de- part was remaining while the at the time subsequently of annexation was undevelop- orange groves other voted declared void court for fundamental Only parcel land had areas. one ed error in attempted its enactment. Hart v. development. commercial Bayless Co., Investment Trading & 86 Ariz. 379, 346 P.2d 1101. Thus decree'of this summary of uses indicates that existing A court there legally clearly pre- mixed with residential nance covering at the time combined,

dominating over all other uses of annexation. by undeveloped agricultural followed Confronted with the minor use. foregoing factual uses situation the passed and south from extending north of Phoenix Zoning' disputed Ordinance abutting the G-133 which (those made classifications designed depth blocks are clear- to harmonize this lots) to several area with its *3 plan farm- except for master ly in use some while at the residential same time con- forming nearly possible, south. as ing or vacant uses on the being without illegal spot of guilty zoning, to the existing complicating Further the situation factual the strip use of question area. The in was passage the time of annexation the at part just larger of a section of newly the Zoning Ordinance G-133 was the fact of area which annexed was zoned R-5. This imposed Maricopa County had on the permits the range classification broadest of strip disputed two and blocks one-half any of the uses residential classifications. hodgepodge zon- along Thomas Road a ordinary addition to uses, In residential five differ- included some four or ing which others, among some permits, officebuildings, judge the ent classifications which led trial theaters, hotels, motels, drive-in trailer say, things: other among courts, hospitals similar charitable in- fact, even though stitutions. the area “I don’t know of a case that I have substantially R-5 developed zoned at permit examined that would such zon- passed, G-133 was there only time were the ing this. courts said time approximately thirty out of of the three again time spot zoning cannot were then being in lots used supported. commercially they granted were non- ^[*] ^[*] ^[*] ^[*] ^[*] . ^[*] conforming use permits. Road significant that Thomas zones. When the fact is mind is note borne in which, that R-5 is one of accord- is next on a the arterial C-l continuum streets carry zoning ing evidence, sub- map classifications which includes ten the traffic pat- than different zones the zoning traffic sense of the stantially larger volumes of persons tern arteries. becomes more clear the even to lying other between streets not zoning entire trained who science maps in evidence show rely appellate on the served cold record quadrant northeast eight their information. about grid generally of arteries north-south apart running both blocks the-maps It is especially significant that zoning and and east-west. zoning evidence show that very that with maps in evidence show parcels dispute fully with consistent between and uses exception zoning little patterns in- throughout established re- more is limited arterial streets city. finitely larger area more Even uses, R-l principally residential strictive significant is the fact Thomas com- time and At the same and R-2. itself from Central 56th Street Avenue to along consistency zoning mendable ( fifty-six blocks) pre- a distance of zoned pat- regular is distributed arterial streets dominantly for R-5 entire Along use. re- R-5, least is the between terns only departure distance from R-5 zon- uses different residential arid strictive strips (most is for some small of R-l re- degree from only a limited (much restrictive use) residential some uses, re- and the most commercial strictive properties fronting less than half uses, and C- type commercial C-l strictive Road) zoning at the fronting 2. Some grid. intersections of the arterial however, are, arterial streets including uses residential more restrictive superficial even We think that instances one two R-l. There completely look in evidence exhibits either R-5 or C-l parcels are zoned where employed stain rids here front arterial do not on an or C-2 which possible spot frequently so con street. demned cannot see that courts. We *4 pattern of distribution between R-5 strip employed The zoning subject as here is to substantially pattern the commercial zones is It a condemnation. follows sensible near the intersection of arterial to it this: condemn be to would condemn as grid the arterial the streets well the of commercial zoned for commercial between áre this area which is the to alternative ~ intersections are located complaining those the R-5 which the holders reappraise to employed than us rather them.” Berman v. contend should be Parker, 348 U.S. 75 S.Ct. R-5.

102-103, 99 L.Ed. problem of what constitutes Supreme appropriate primarily While the Court the zone Berman legislature. prerogative It the case was Due is not the of with the dealing Process judgment Clause courts substitute their for Fifth of Amendment restricts body system govern federal our action we think purposes primary responsibility ment with here vests under consideration health, how the Due determining public best serve Process Clause Fourteenth safety only and welfare. The which Amendment is no more role of state restrictive action properly play can courts when exercising police power the decision its promote making properly general once the legis constituted welfare. See State ex body spoken lative has rel. is to insure that the Park Corp. Saveland Holding v. Wie legislature land, has not exceeded the broad Wis. 69 N.W.2d 217. bounds set the constitutions of the State The concept that a man owns and of the recently States. United As as from the center of the earth to the limits of Supreme 1954 the Court of the United sky to use as suits his fancy own is not States indicated a unanimous decision now and has not entirely ever been true. that the limits within which legislative doctrine nuisance always which has

judgment public welfare left a been restriction on land use is as ancient free are broad indeed. The court said: as the title to land in country. Of concept beginning “The course dealt with welfare ** * the more gross broad and and obvious kinds inclusive. represents values But nuisance. urban spiritual disease like as well disease physical, subjected as body has been aesthetic as well as mone- much tary. sophisticated power is within the examination in recent legislature years. germ theory determine that Now urban com- munity slums, blight should such as be beautiful diseases as well as others healthy, spacious clean, as well established. Where once the thought well well- injection balanced as carefully patrolled. prevent well of an needle to present In the case, smallpox Congress have horrified would even its sophisticated accept authorized agencies society have made we most now determinations that may take into matter of course and account it as constitu- variety tionally compel every wide values. It is not for citizen to submit

18 879, Beach, Cal.2d of Manhattan general in the interest the treatment v. of Tal- P.2d Oil Co. Standard would be suggest otherwise welfare. To 410; McQuillin, lahassee, Cir., F.2d a The fact laughable in our times. (3rd Ed.) 25.295. Municipal Corporations § treatment development similar party has objecting can- much has been slower urban diseases showing the unconstitution- the burden of drawing con- any way justify us not in City of ality We said in of the ordinance. prevent the dis- stitutional limits Mortuary, 34 Arizona Ariz. Tucson v. covery preventative 506-507, 272 P. 927: Its disease. medicine to this kind a very complexity need for suggests the appears high- “It that the therefore If range operate. within which to broad authority in est the land has held can virgin state we comparatively in our districts dividing ordinances cities into prevent first brick laying they of whether are resi- on the basis ghastly have ulcerat- slum like those which or limiting dential business and should great ed urban we centers elsewhere within these of real estate various dis- experimentation consider cost some purposes certain are to be tricts to sus- import a matter of indeed. small necessary principle, being tained in be declared they in order uncon- persons property fronting own who affirmatively appear that it stitutional right no to indis- on Thomas clearly arbitrary the restriction criminately impact ignore the of their de- unreasonable, has not sub- any adjacent velopment on the public health, relation to the stantial employed gives them them. The morals, general safety, welfare.” fix their own course of de- great latitude to supplied.) (Emphasis lengthy velopment according but by- in that rule set case is forth qualified testimony are of those who in zon- We Edwards v. State means novel. said placed negative limits on that choice ing the Examiners, 72 Barber Ariz. Board of prevent necessary creeping de- ; 112-113, 452 velopment undesirable conditions which “ ‘ * * * [Wjhere an enactment ultimately cast burden on all the would relationship reasonable bears community. in the We property holders may sought the not sub- end courts do not the limits set transcend think judgment judgment their stitute constitutionality. bounds again legislature.’ stating And antithetically: ‘Hence rule which presumption that a There is acceptance that universal McCarthy zoning ordinance is valid. legislative preclude acquiesce any purpose its use for courts will reasonably un- adapted.” of fact all matters determination of arbitrary erroneous, clearly it is less Bay Arverne Thatcher, Const. Co. v. wholly unwarranted.’ 587, 589, N.Y. N.E.2d 117 A.L. *6 we the law “With these statements R. 1110. City See also of Tucson v. Arizona are in accord.” Mortuary, supra. The prop fact that the objecting opinion are of the that erty We is reasonably useable purposes for the show failed to property completely holders for which zoned is sufficient to establish un- clearly arbitrary and that G-133 was that confiscatory. ordinance was not reasonable and that has substantial addition, even if light taken in the most morals, public health, safety, relation to the favorable property to the holders the evi con- They nowhere general welfare. dence at properties shows most that reasonably properties not tend that their are be would permit less valuable for uses 50% under purposes permitted for the usable ted under G-133 than for commercial use. however, proof They offer, zoning. R-5 On its face this a is not sufficient difference be more that their would valuable confiscatory say court to that it is especially zoning, view under commercial taking thus a process without due Thomas, and amount traffic along So law. far as can we all that determine development the area the natural line of holding cases zoning ordinances commercial use. was toward confiscatory be considerably show a loss in excess case, of that shown or that long The mere loss of value has the property was unusable as zoned. Sev rejected as basis for a avoiding a been eral cases have sustained ordinances where City Tucson v. Arizona zoning statute. property considerably devaluations were Mortuary, supra. Nonconfiscatory financial See, greater g., than in case. e. Village reasonably property can be where loss Euclid, Realty Co., Ohio v. Ambler 272 purpose for which zoned for used 303; U.S. 71 S.Ct. L.Ed. Brae law, permit not, sufficient matter of Burn, Hills, Inc. of Bloomfield v. hold the uncon ordinance the courts 425, 86 N.W.2d 166. Mich. stitutional. conclusively Even if the evidence shows , upon an attack “To sustain development of that the natural this section aggrieved validity the ordinance an be toward commercial use it is not would owner must show that if pre- say the courts for is enforced the conse- development is upon such unconstitutional. vents restrictions quent power over police v. Arizona late this ordinance to the City of Tucson We said in safety. Mortuary, page Ariz. supra, 34 at page 927:

P. that can most be said for upon purposes holders’ might case is that it be said that for “To hold resi- record that not be classified reasonableness district could police relationship isolated ordinance and its merely few dential because a power fairly already been estab- The law is well had debatable. business houses practically prohibit settled that where there reasonable therein would lished zoning. validity right doubt as to the of the ordinance the exercise opinion not quo- will substitute its foregoing As we have seen legislative that of case, body. neither Price v. Euclid tations from Schwafel, Cal.App.2d 683; develop- the natural mere fact that Crane, Willett & of Palos industrial Inc. was toward ment of district Estates, Cal.App.2d Verdes P.2d normal enterprise Hartford, Mallory v. Town expected use of of West reasonably future industry 138Conn. A.2d property was certain prop- *7 that purposes, nor fact trade rely not holders did purposes, for business erty, if used entirely attempt carry on their the burden if value than used be would affirmativelythe showing unconstitution residential, justify a court will They ality of G-133. that in contend finding unconstitutional in a change case G-133 constitutes of an exist such or checks defeats nance ing zoning ordinance and that therefore the another it to development or diverts proof city prove shifts burden to the district.” affirmatively that there a change has been failed property holders have Not justifying circumstances a change. such is affirmatively that the ordinance show may rule be which applies Whatever bears arbitrary and that unreasonable change amendment of ordi police power of the relation proper rule can that have no nances appears affirmatively in but addition state where, already as we this case not city the ordinance that record for in the ed, no lawful there was nearly possible to the exist- complied as effect as at time of its appears area. It further uses passage annexation G-133. experts com- city’s testified light create of our determination of the zoning in area would issues mercial clearly we hold that re- in this case the trial court traffic hazards additional err- n ed applied to these north west, that G-133 as side about holding 900 feet all judg- abutting unconstitutional. was was zoned commercial. re- Commencing therefore at Twenty-eighth trial ment of the Street and running approximately 2,800 versed. feet east the

abutting property was zoned commercial. Hence, squarely MUR- LOCKWOOD, J., middle and PORTER of an area 6,400 concurring. approximately Judge, RY, Superior length feet Court commercial is an island which while emi- nently suitable for commercial development an- BERNSTEIN, J., having V. C. has been re-zoned R-5, Honorable resi- disqualification, the nounced his dential. Superior MURRY, Judge of PORTER sit

Court, County, called to Greenlee practice Such a is commonly known as his stead. “spot zoning”. “A zoning ordinance or amendment STRUCKMEYER, (dis- Chief Justice present type creating a small senting) . zone of inconsistent within a larger is a action brought This class some of commonly zone designated ‘spot ” abutting of those lots on Thomas the owners zoning.’ Penning Owens, v. Twenty-fifth Road between Place Mich. N.W.2d Street, Twenty-eighth a distance about Spot zoning is universally almost held to ordinary city blocks. None of the three arbitrary, discriminatory and invalid. disputed the fact all (cid:127)evidence Kissinger v. Angeles, Los 161 Cal. eminently frontage in suitable App.2d 10; 327 P.2d Rockhill v. Ches- purposes. Township, terfield 128 A.2d N.J. Road is the second busiest east 473; Cain, ex rel. Miller State 40 Wash. city, having arterial within the west .and 2d State ex rel. Scand- city’s time of the about the annexation an Nelson, rett v. 240 Wis. 3 N.W.2d 765. Twenty-fourth traffic flow at average Street . sabotage the pur- It tends to fundamental (cid:127) 17,260 daily. Approxi- motor vehicles *8 pose requiring statutes the mately frontage of between Twen- 65% land division of into districts “for trade, in- ty-fifth Twenty-eighth Place and Street was dustrial, purposes”. residential or other 19, April 1955, commercial on zoned 9-461. A.R.S. § city’s annexation. Commencing date of the 1,600 municipal the south side of “A classification in a on zon- area in and on must ing feet west of the ordinance be based on natural . 22 353, Village Trenton, N- must Mich. 75 characteristics and 345

distinguishing 814; Portland, 17S- sub- Page W.2d relation to v. a reasonable bear 632, addition- founded Or. New and be P.2d 280. legislation, must ject princi- al considerations- appear must upon reasonable facts or other distinctions materially sub- be- just merits must ple affecting relation and have accomplished, original shown be to have since ject sought intervened Mims, 123- upon adopted. v. must be based substantial Strain differ- class such Conn. between situation 754. ence class- or classes other individuals county The zon- established commercial (Em- apply.” does not es to ing area majority of the lots Braswell, supplied.) phasis Rawlins v. city zoning under consideration. The S.W.2d 191 Tenn. changed the nance of December distinguishing prior zoning. ap- majority There are natural char- dismiss the pellees’ or substantial differences be- argument re-zoning acteristics this is properties appellees “island” citing Bayless Hart v. Investment & tween Trad- adjacent properties Co., which were Ariz. Therefore, the differ- Maricopa County commercial. Zoning that the Or- effect in classification covering ence area at time of dinance was, years nature Thomas Road mani- similar some annexation two later de- festly reasonable basis. ma- without fundamental its- clared void due to error in wholly ignore this fundamental con- jority that there conclude was no« enactment reason alone the trial cept existing covering prop- legal judgment. be affirmed in its should Proper- time of the annexation. at the erty had upon this area relied ty owners Second, by appellees contended county zoning. Property had been that here the facts is a case supported developments planned sold and bought re-zoning. so there If involving thus on the ordinance. reliance principles different into brought original involved in zoning. than of law operative fact of county ordi- justify re-zoning rule that there is the denied, since, not be should for all nance change in a substantial conditions treated purposes, it was practical valid be a exercise of there valid in order city’s before the many years annexation^ Corp. City v. Charnofree power. police formerly “Although it was held Fla.1954, So.2d Beach, Miami nullity statute is a unconstitutional 415 Ill. Chicago, Zilien v. Shelby County, Norton (see initio v. Development Co. ab 717; Trenton N.E.2d

23 1121, prior 442, 30 L.Ed. to 425, determinations have deemed 118 U.S. S.Ct. finality upon Indianapolis & Louis 178, Chicago, accordingly, of acted Hackett, public policy light U.S. Railway of the nature Co. ville 966), 581, both of the 559, 566, previous L.Ed. S.Ct. statute of its ”* * application, recognized lately it has been demand examination.’ re Dougherty’s taken or consequences of action Sons v. Commissioner J. require Rev., Cir., 700, of Internal to 121 F.2d in obedience stricted subsequently of a statute ments ap are to be unconstitutional declared majority’s The gives conclusion too techni- light of the adjudged in praised and cal opinion an to our Hart prior by the statute compulsion exerted case, supra. People’s rights were deter- invalidity. Chicot In its determined to provisions mined under the and its v. Baxter County Drainage District scrupulously were enforced. 371, al., page U.S. Bank et State my opinion, the majority err Mr. L.Ed. 60 S.Ct. another reason in this conclusion. At the speaking Hughes, Chief Justice city’s time of annexation all the Court, specifically refer Supreme after nances became effective in the area in ques- cases Hackett ring the Norton to Beatty, tion. Planning Mr. W. Direct- John clear, how said, ‘It supra, quite cited City Phoenix, or for the testified that ever, broad statements that such Municipal Ordinance, Phoenix Section of uncon of a determination effect C, paragraph subsection relating to zon- quali be stitutionality must taken newly annexed ing territory provided: aof actual existence fications. determination, prior such a

statute, “Areas, City when annexed to the may have con operative fact and Phoenix, shall, officially until zoned by ignor be justly sequences cannot Council of the Phoenix, always erased be past cannot ed. to be considered zoned as shown be Zoning Map The ef declaration. judicial Mari- by a new Official County Planning subsequent ruling copa as to in and Zoning fect of (Emphasis Commission.” added.) may to be considered in validity partic respect to aspects,—with various City of Phoenix Ordinance 104 does corpo relations, individual annd ular “valid zoning not use words ordinance” private conduct, particular rate, and refer county nor does Questions rights claim official. newly states “ordinance”. an- status, vested, property will be considered become nexed to have be ed Indeed, weight. it creates a county’s zon- the same official shown counter-presumption zones are map. annexation At time planned arranged’ into evi- ‘well and are introduced county zoning map, subject ma- permanent’, of a ‘more or less dence, showed so change genuine and it to meet change this area properties in jority of *10 the after in conditions.” eight over months remained for April is from city’s annexation—that presumption present In the the case of through December 1955. validity given weight should be whatso- rely on to Property are entitled owners There is not a ever. scintilla of evidence will knowledge that zoning with the any change to show of condition from a. subject to permanent and more or less the contrary commercial use. evi- To the in changes change only genuine establishes, to meet appellees dence on behalf of Terminal Road', Merchants Northwest conditions. property fronting the that A.2d 743. O’Rourke, Md. initially farming and resi- this area was pri- entitled, conducting their They are past the dential but progressively that over rule investments, the benefit of the vate to years its been aban- residential uses have the exercise of is not a valid re-zoning that appellees not. according doned and “is showing of is a police power there unless anymore”. suitable Indeed for residence the change conditions” of “substantial testimony discharge- alone sufficient to is changed. the area character of validity any presumption of the- since that holding pre- unbroken Court of consequence peculiar of their view As a positive.- sumptions face retire majority the case laws proof. presump- that there is a applied the rule applicable validity tion of “ * ** ‘Presumptions may be party objecting that the nances and law, flitting looked on as the of the bats showing the has the burden of twilight, disappearing in the but

unconstitutionality presump- thereof. * * * of actual facts.’ sunshine apply validity great not with as does tion Whiting, 84 P. Seiler v. Ariz. Kraft, Wakefield v. re-zoning. force 452, 455 2d 136, A.2d Northwest Mer- Md. O'Rourke, Terminal v. 191 Md. chants opinion judgment- I am of the that the latter case 752. In it was A.2d court below should be affirmed for validity: presumption of held appellant City reason that the of Phoe- rezoning change failed to establish a “applies as well as to nix con- * * * reasonably re-zoning. requiring but not original ditions Third, the court below in its memoran- nated development area than rather n dum opinion found no reasonable basis marginal strip development and modern n health, safety required welfare planning undertakes facilitate appel- limitation and restriction operation ac- through of economics lees’ property to a residential classification. enterprise tivities private in that 'The then is whether this conclu- way.” sion of the trial justified. Evi- Since no factual te» matters were offered (cid:127)dence in attempt the re- to substantiate support private opinion his ultimate .zoning given by Pomeroy, was Hugh one R. none developed could be on cross- from him alleged .an expert city on social examination, than testimony no more planning. maps, pri- He examined various personal way things conclusion marily zoning and then drove ought supporting to be! The witness’s

n overthe metropolitan most entire area testimony paraphrased can be more forth n major generally thoroughfares rather rightly thus: city.1 The criss-crossing in and around development inso- “Modern business n essenceof personal testimony his so, compelled far under as it is to do n opinion shopping the “clustered or area de- zoning, designated go *11 type superior (cid:127)center to development” is velopment, etc.” develop- what “strip” is called commercial testimony developed Some that there ment His reason along the arterial roads. ample strip zoning along Thomas .for opinion stated: was, as he Fifty-sixth

between Central Avenue inso- development “Modern business property been Street. That other had do to opportunity far as it given commercial, satisfy the to sufficient so, desig- go to zoning, under tends to community expert’s needs of the orginally 1. The laid get Phoenix- was “As we into the areas are including out with open, reference to the Salt River Base those most recent- unincorporated & ly Meridian. All the land was homestead from the county, annexed ter- principal ed, being ritory, roads established we see the reflection city on the opportunity mile section lines. As the had grew housing replaced farming, com more in accord with the zone modern establishments, development, mercial practice retail trade out of business lets, developed along main arterials. of the manner in reflection being enterprise Thomas Road is a main private arterial serves the demand for Washington Street, property might two miles north of terms what business n principal highway. dynamics east-west called the the market as example buildings aAs further of the basis for area of business re- opinion, perhaps, parking of his less lation to automobile and automo- specious testimony: access areas.” bile proper points conflict here. It creates

opinion justify the denial does not which in effect are hazardous over-all.” property to zoning appellees’ Moreover, the for which it is best suited. out, judge pointed As the trial this same city’s facts belie the inference strip reasoning applicable line of to both seven arbitrary. Within action was not motor shopping center Each areas. appellees’ re-zoning of after months vehicle ingress egress, whenever it seeks or on re-zoned property commission public point onto a highway must add a acres, 12 commercial Thomas Road to conflict, But since “hazardous over-all.” Thirty-second 24th, April on 1956near acres only ostensibly assign- it is the reason valid 31st, between Street, July 60 acres ap- ed for denying commercial Street Thirty-sixth and Fortieth Street pellees, it in more de- should be examined Forty- 7th, near August acres tail. fourth Street. II, the Arizona Article Section 17 of decision majority part base their Constitution, A.R.S., pri- provides that “no testimony on the that commercial damaged for be taken or vate shall traffic create additional this area would public private just com- use without clearly “which relate hazards pensation.” properties, Others with like safety”. In police power over nance to the permitted development respect testimony Mr. John irrespective this area conditions. traffic was: Beatty, City Planning Director W. deprives appellees A classification which strip zon- “By the establishment of a substantial value of their activity along ing—strip commercial pub- depriving them of a similar use of the required curb arterials with these highway lic should be held to be a confis- driveways necessary per- cuts and cation the benefit of the places get into the people mit private owners. other places get out of the business, and business, these curb cuts each one of deny addition, opinion I am of the traffic as far as move- a conflict adds fully prop- right use the appellees the *12 These various is concerned. ment flimsy pretext Art- erty violates on such thereby lessen the points of conflict 13, pro- II, Constitution icle Section capacity they traffic-carrying or de- that: viding traffic-carrying capacity of crease granting be enacted arterial, “No law shall which is one of its main citizens, corpo- citizen, or class of functions, carry people from here 363 P.2d 617 municipal, privileges Tation other than upon which, same immunities Application of David GUBERMAN for terms, belong all equally shall not admission to the State Bar of Arizona. corporations.” (cid:127)citizens or No. 7050. public highways

The right to use the Supreme Court of Arizona. upon ingress be available egress should En Bane. equally the same terms and conditions July 14, 1961. like having all owners regula- Changes characteristics. and not discrimina-

tions be uniform High-

tory Carole among owners. County

lands Board Citizens Ass’n v. County, 222 Md. George’s

Com’rs of Prince 663; City of Freeman v. A.2d 703;

Yonkers, N.Y.S.2d 205 Misc. New- Imp. Town of

Callanan Road Co. v. 780, af-

burgh, 6 Misc.2d N.Y.S.2d

firmed 5 N.Y.S.2d A.D.2d establishing they are invalid where Hannan, Ky.

special privileges. Mathis v. Edgewood Civic 306 S.W.2d Blaisdell, 244, A.2d 517.

Club 95 N.H. validity upon based concept way planner’s things

social justification can find no

ought to be health, safety general welfare principles are

if constitutional adhered to. judgment of below should affirmed J., concurs in the

JENNINGS, foregoing

dissent.