*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.
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,
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.
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
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.