Cole-Collister Fire Protection District v. City of Boise

FIRE PROTECTION COLE-COLLISTER DISTRICT, Corporation, Plain tiff-Respondent, BOISE, Municipal Corporation,

CITY OF Defendant-Appellant.

No. 10320.

Supreme Court of Idaho.

March 1970.

Rehearing May 1, Denied

Clemons, Green, Boise, Skiles for & defendant-appellant.

Millar, Carter, Boise, Callister & for plaintif f-respondent.

DONALDSON, Justice. Cole plaintiff-respondent,

The District, Collister Fire Protection owns parcel property vacant located on of real Northwest intersection corner in the Cole and Ustick Roads seq., Pursuant 50-1201 et I.C. Boise. § question property zoned the This “L-O” “Limited Office District.” designation precludes the erection of a property station situated with orig- in the The “L-O” zone.2 relating profes- (b) Accessory 1. Boise Code. uses office; REGULATIONS “SECTION 11-2-7: sional and administrative (c) Mortuary.” DIS- LIMITED- -OFFICE —L-O FOR TRICT City Code, Purpose Limited Office to Boise 11-2-7.3 § 11-2-7.1: Pursuant —A other than those to accommodate certain enumerated uses District is created permitted. development designated by for are need 11-2-7.2 demonstrated necessary together space : Uses Permitted “11-2-7.3 Conditional of office permitted following parking uses shall be facilities in locations —The off-street yet inappro- by primary access, authorized when Conditional served provided development priate in Sec- obtained as because Permit for commercial Use proximity to residential uses. tion 11-1-9: of close (a) Single-family, two-family, multiple- administrative, profes- intended that It is high family multiple-family rise office uses and ; and limited business sional (c) Boarding dwelling (b) permitted Bank shall be lo- in this home, harmony (d) rooming house; designed Convalescent so as to be cated ambulatory adjacent nursing home; (e) The fol- for residential uses. Home with lowing regulations (f) aged, home, elderly housing; apply, in addi- rest shall research, Hospital; (g) Laboratoi'y, regulations general den- tion to the ordinance, (nonindustrial) ; (h) any Mo- Dis- tal medical L-O Parking (j) tel; .(i)-Nursery school; trict. (cid:127) lot; shop; Prescription optician (k). (cid:127)11-2-7.2: Uses Allowed (l) Prescription pharmacy; (m) (a)Professional Public of- and administrative utility facility (non- building; (n) fice; Public re- question twenty years. The further record inally purchased bordering streets corner that both veals a fire station. However use as parcel major traffic ar- area became station in this need for a fire parcel terials furthermore respondent wishes present and at obviated as resi- would unsuited and undesirable Respondent he dispose property. of the dential or as an office location. from Standard Oil offer received $27,- parcel purchase California to complaint was gravamen right of Stand on the 000.00 conditioned because of the location gasoline filling sta ard to construct Oil commer- surrounded stated, gas As heretofore thereon. (permitted un- cial establishments to exist in a zone “permissible is not a use” use) non-conforming der the of doctrine testimony designated At the trial “L-O.” traffic, heavy roadways such carrying re presented indicated was which property is zone not desirable as “L-O” sale, spondent property advertised the for e., offices, property, accessory i. uses relat- except purchase to but no offers received offices, mortuary, any ed to nor for of no There is one Oil. from Standard uses, assuming that conditional authorized respond testimony of record that indicates permit applied for conditional use property is useless or of no economic ent’s approved. property Thus the has a gasoline sta if it is not as a value used long limited value as as it is classified tion; testimony that re there is however property “L-O.” does have However $12,000.00 spondent’s land is worth considerably greater as the location $15,000.00 restrictions long so as the gasoline filling for a station. For apply zone while it is worth “L-O” zoning im- reason “L-O” classification $27,000.00 $30,000.00 station if a posed respondent’s property alleged upon could it. re be erected The record arbitrary, capri- unreasonable, although veals that has zoned cious, depriving property him his without respondent’s question ad land in process due rights in law violation of “L-O,” joining parcels prohibiting the thus afforded under both the United States pur use of land so zoned commercial and Idaho Constitutions. poses, permitted it has in fact commercial jury sitting The trial court without station, (gas res establishments drive-in respondent’s merit in claim and found taurant, salon, beauty animal health and made of law which stated conclusions prop hospital) proximity in to exist question ordinance in was con- erty non under the doctrine of fiscatory, arbitrary and unreasonable all of the “L-O” conforming use.3 In fact property respondent void as except the lot in respondent any subsequent and that the or up non-conforming made establishments property owner of the is entitled to erect having expectancies life of fifteen maintain on said excess a service Beyer Dictionary, (1968) ; industrial) (o) School, public, private Revised ed. Mayor parochial of Balti- or v. Council 444, more, 182 Md. 34 A.2d 765 Those uses not enumerated under 11-2- § non-conforming prohibited. uses or The continuation 7.1 11-2-7.3 are § permitted not them Prohibited because not to allow “11-2-7.4: Uses —Uses specified prohibited be a violation of the above are unless de- to continue would clauses, Planning Director, process cf., termined due v. O’Connor (g), Moscow, accordance Section 11-1-5.1 specified.” be similar nature to those 9 A.L.R.2d 1031 However non-conforming uses is de- continuation Non-conforming permitted signed imposition to avoid the of hard- uses —Uses by zoning ship statute or ordinances to con- the owner of 6ut event- ually non-eonforming notwithstanding to he sim- use is tinue the fact McQuillin, Municipal permitted eliminated. ilar in the area Seo 8A uses are they Corporations, 25.183, pp. Law Black’s are located. 16-1S. petroleum products. Vernon, selling Fur- N.Y. N.E.2d enjoined the ap- problem the trial court considered a identi- thermore almost any pellant civil or crim- cal to bringing the one the case at bar against parcel or its placed inal where a in a action land was precluded out of the use of arising successors classification which subject property, purposes use for which it was most readily adopted. beyond dispute local It is that a record, plaintiff, having “On this body right enact zon legislative has the an Euclid, invasion asserted ing Village Ohio ordinances. Tarry rights, Rodgers Village cf. Realty Co., 365, 47 S.Ct. 272 U.S. Ambler town, 731, has 302 N.Y. N.E.2d (1926). However 71 L.Ed. met proof establishing the burden of re bear reasonable ordinance must so situated sought to be lationship goal ends possibilities has no for residential use Appeals of New attained. Court and that the use added clearly principle in hold York stated the improve amendment does not the situa ing when it invalid fact, but, destroy operate stated: part greater of the “ -power interfere governmental ‘The since, authorizing its use general zoning regulations with the services, parking it neces and incidental by restricting rights of land owner sarily permanently precludes the use for use, unlimited, the character of e., readily adapted, which is most i. aside, questions such restric- and other permitted ac business use such as and imposed it does not cannot be if tually all carried the owners public relation to the bear a substantial surrounding property. such Under morals, health, safety, general wel- circumstances, ordinance the 1927 City Cambridge, (Nectow fare.’ v. amendment, map 1952 and the 448, 183, 188, 447, 72 48 277 U.S. S.Ct. they pertain plaintiff’s property, as to the 842.)” Matter of L.Ed. Concordia Col- are as arbitrary so unreasonable Miller, legiate Institute 301 N.Y. 189 v. property fights, constitute an invasion 196, 636, at at 21 A.L.R.2d 93 632 N.E.2d process contrary due to constitutional (1950). 544 and, such, invalid, illegal and are void Furthermore, zoning cannot be ordinances 14th 5th and enactments. U.S.Const. arbitrary they since interfere with free N.Y.Const, 7; I, 6, Amends.; art. §§ validity use of and thus the Corporation v. Rockdale Construction depends on a reasonable Cedarhurst, Incorporated Nas Village police power. relation Continental 76; 519, sau County, 301 N.Y. 93 N.E.2d City Falls, Oil Co. v. of Twin 49 Idaho 89 Bay Co. v. Thatch Arverne Construction ; Appeal 106, 286 P. 353 at 358 587, er, 222, supra 15 N.E.2d N.Y. [278 19, Sawdey, (1951). 369 Pa. 85 A.2d 28 Dowsey Village of 1110]; 117 A.L.R. v. In determining of reasonable 221, supra 177 Kensington, N.Y. [257 ordinance, ness or unreasonableness 427, 642]; Eaton v. N.E. 86 A.L.R. existing all the circumstances or contem 176, N.E. Sweeny, supra 177 N.Y. [257 poraneous conditions, sought the objects Euclid, Ambler ; Village of Ohio v. obtained, 412] to be necessity and the or lack 114, 365, Co., Realty 272 47 S.Ct. adoption, for its U.S. thereof will be considered City 303; the court. White v. Twin v. Pennsylvania Co. L.Ed. Coal 176, 81 Idaho Conti (1959); 338 P.2d 778 Mahon, 393, 158, 67 260 U.S. S.Ct. Falls, supra. nental Oil Co. v. of Twin City 322; Islip v. E. Sum L.Ed. Town of F. Co., 167, N.Y. mers & Lumber Coal Appeals

The New York Court of Realty v. Realty Vernon 409.” Park City Park v. of Mount 177 N.E. Vernon 5g3 City Vernon, presumption Mount 307 N.Y. 493 at to be attributed such 499, clear, 519, opinion 121 N.E.2d 517 at a divided held convincing uncontradicted evidence firmly prin It is a established opposition presumption ciple validity presumption of law that a prevail over the as a matter of law must be accorded the decisions presumption, incorrect and that it was municipal zoning board. jury, to instruct in order “Ordinances and a mu- resolutions of presumption overcome the the evidence nicipal corporation valid presumed clear, convincing must be and uncon- contrary until the The bur- is shown. Department v. tradicted. In of Finance party den is who attacks 484, Co., Union Pacific R. R. illegality an act thereof. show the that if (1940), was held P.2d Grimmett, City supra of Idaho Falls v. might reasonable minds differ as to 90, Idaho Taos 117 P.2d Coun- [63 461] drawn the evi- conclusions ty Sedillo, Board of Education v. mat- opposing presumption, dence 300, 1027; Baxley v. 101 P.2d N.M. jury, ter should be submitted to the Frederick, City of P. 133 Okl. jury presump- informed 257; Coon, Spokane 3 Wash.2d v. tion, Moore, supra quoting from Geist v. 36; Hughes 100 P.2d 403], as follows: 70 P.2d [58 Carlsbad, 995; 53 N.M. ‘ ** * following in the cases Bluff, Poplar Mo.App., Seifert v. definitely it- this court had committed Ed., 93; McQuillin, 112 S.W.2d 3rd §§ there self to the doctrine that where 22.34, 24.31.” Boise Better presumption is a conflict between Homes, Inc., 72 Idaho 441 at evidence, contrary from which rea- 303 at 306 might sonable minds draw different also, Grimmett, conclusions, City proper See the of Idaho it to instruct Falls v. 90, 91, 63 (1941); jury presumptions, (citing Idaho as the 117 P.2d 461 3 to ” Anderson, p. Zoning, cases.)’ American Law of 584, 25, (1968). presump 21.16 91 Idaho 19 at 415 P.2d 305 311 However a § merely of requires (1966). law is a rule which that particular the court draw a inference emphasize that We the burden from fact unless the and until truth of proof upon plaintiff-re of the devolved disproved. Black’s Law inference level, spondent, at court to show the district Dictionary, 4 Mis (1968); Rev. ed. Lane v. applied to the that the ordinance as Ry. Co., 4, souri Pac. 132 Mo. 33 S.W. confiscatory, ar in was ; Evidence, (1895) 645 1 Greenleaf §§ City bitrary, Boise unreasonable void. 14, 33. Homes, Inc., supra. This burden v. Better respondent as demonstrated has sustained carefully This court con- considered the the ample in the evidence contained cept “presumption” of in the case Haman of that support legal to the conclusion record America, v. Prudential Insurance Co. of ap the was unlawful ordinance 91 (1966) Idaho 415 P.2d 305 plied respondent’s property. stated: McCoy, “In Idaho Madron v. 63 the overcame Once validity introducing (1942), 126 P.2d 566 it was held presumption the of if insufficient evidence is the ordi tending to show evidence unreasonably party against presumption the whom the question had been nance in operates, presumption the entitle applied property, will the burden to his relying party judgment. City the on it to forward to to come then shifted Boise Graham, respondent’s In Brown the with evidence rebut (1941), P.2d 485 this court considered that the ordinance evidence and to show Nampa, evidentiary City the other side the of of Hendricks v. valid. ordinance, validity In of attached to the (1969). the validity party attacking validity of ordi to sustain the its its lose. order would Colwell, the burden of nance, Boise then bore et al. v. 90 Ill. 612 Graves introducing party evidence which would tend This result is since the at correct filling tacking validity show that the of the of the ordinance bears erection non-persuasion the would the risk the of the trier station on fact; neighborhood, pro disruptive be the he lose if he fails con noise, injurious to way jury justice duce some be vince the the or court health, safety public position. or morals. However City produced iota evi Boise not one parties the to a civil action “Where probative legal conclusion dence dispute a material issue of over in erection station would fact, if lose party then that who will by the goals terfere with articulated equipoise may trier’s mind is in sought prescribes ends statute which trier will to bear the risk said regul to be the aid of attained via affirmatively persuaded or not be orig validity presumption ations.4 persuasion upon of non that issue.” risk inally attached the Boise ordinance persuasion is The ultimate burden of disappeared behooved from the case party attacking validity produce competent legally Boise Nampa, ordinance. Hendricks v. prove evidence tended supra. respond restricting ordinance the use the aforementioned reasonably In accord with ent’s re property was at least validity principles, if purposes of 50- lated I.C. intended question can be applied By today seq. holding have et our we (evidence fairly said City’s plan to be debatable control thwarted validity upheld. equipoise) must be an admir Planning indeed future. Glaspy, Huneke Colo. proper necessary able for the element County v. municipal Metropolitan Dade growth cities. However Greenlee, Fla.App., 224 body So.2d 781 disrupt freedoms cannot individual the Idaho guaranteed which are both case, instant However under States Constitutions United sub the record discloses that there was City pro guise planning. Boise of Since sup competent stantial and evidence legal support the duced no evidence port such finding the trial and court’s that of a conclusion the erection Supreme finding not disturbed the be question in property on the Boy appeal. Thompson Wise Court v. health, injurious public would be to the 363, P. 958 Co., Min. & Mill. 9 Idaho safety, community, it is the and morals of Bales, (1903) Payette Boise Lumber v.Co. the clear the that evidence from record 762, (1933). Further 52 Idaho respondent. 'preponderated the in favor of prima plaintiff made out a more has where a state the were in introduces If evidence case and the defendant facie equilibrium, presumption evidence; of the not be then under judgment will no the Regulations Purposes sewerage, water, transportation, in 4. “50-1203. of — regulations require- parks public schools, shall be made view.- —Such other and comprehensive plan, regulations with made in accordance a shall be Such ments. designed congestion among consideration, to lessen and shall reasonable with safeguard fire, streets, things, in the to the character other panic damages, promote pub- suitability peculiar for and other and safety, particular uses, health, general a to con- view and lic morals and the buildings serving en- adequate light welfare, provide couraging appropriate use most air, prevent land, overcrowding city.” throughout land popula- to avoid undue concentration provision tion, adequate Procedure, James, to facilitate Civil 7.6 property. City of Idaho v. landowner’s White Anschustigui, 37 Foster v. disturbed. Falls, supra. ample Twin 136, There is P. that probative of conclusion evidence conceding that the zon Even applied ordinance was unreasonable ex question a ing was valid viz., that respondent’s property, to the City police power Boise ercise the inter- question is located at enactment, was and hence at the time of thorough- heavily of two traveled section time, regu police at that unreasonable been the traffic load has fares where ar lation, made become when valid years; increasing rapidly past for the two operation confiscatory in bitrary and prox- adjacent to and in close Bank Abie reason of later events. State although imity question Weaver, 282 S.Ct. v. U.S. paper zoned “L-O” is in fact used indi record (1931). Since the L.Ed. 690 practical purposes commercial for all and is sit cates that the purposes property; val- commercial increasing at the intersection two uated property in have ue of the would ly heavily thoroughfares traveled substantially greater value if used signal installed because traffic purposes. has commercial Thus flow, residences that no increase in traffic burden of producing sustained the evidence arterial, Cole on either have built been validity to overcome the presumption vicinity intersection Ustick, accorded the Boise Since Ordinance. years, is sufficient past two within failed to come forward with arbitrary the ordinance to show evidence to rebut when the shifted burden (in confiscatory since these events it, non-produc-. must bear the risk commercial in traffic volume crease tion of evidence and its attendant conse- bear area) have definite character quences. validity of the ordinance. ing on the This in Herzog Court Poca- respondent. affirmed. Costs to Judgment tello, 83 Idaho (1961), 363 P.2d 188 problem considering analogous one McFADDEN, J.,C. and SHEPARD presented by bar, phrased case SPEAR, concur. JJ., following issue to be decided in man- ner : (dissenting). McQUADE, Justice “The issue here is whether too-recently road Although this has been ap- the evidence sustains finding Lomond, in Ben traveled before Inc. 596, 605,

pellant’s respondents’ action in denying opinion), (dissenting requests arbitrary, capricious opin- again I once must dissent from discriminatory. consider- After careful enervate ion can serve to record, ation of the entire feel that we futures. plans to control their Idaho cities’ the evidence of in the discrimination au- Many arguments of the relevant aspects various trial Ben Lo- set in the thorities have been out court sustains the findings said court.” reiterate case, supra, and not mond I will at at few only a that here. There are material noting points especially are worth which conse- majority opinion about the re In the case bar the record quences. the supporting veals substantial evidence Court, declaring is that this in findings The first court. Further more, zoning by this classification to a otherwise valid loss caused owner confiscatory,” more “arbitrary has is restrictions the use of his plan- desirability policy of the of a to in ruled on determining be considered an whether or- constitutionality of an ning is in than on application ordinance invalid to the ruling, has, made, dinance. In the Court in so decision pro- and then it could effect, adopted legislature the role of a supplementary duce evidence to that rebut ignored guiding principles de- two record. cision power which the to control courts following procedure,, Instead of that legislative declare acts unconstitutional. wisely adopted by legislature the re- only is “One that courts concerned are view of the agencies, actions state I.C.. statutes, power with the enact to 67-5215, [S.L.1965, 273],, 67-5216 ch. §§ their other that wisdom. The is while majority opinion suggests that dis- by power unconstitutional exercise of trict court supra-zoning- should become a legislative executive and branches of the board. The effect of this and other de- government subject Idaho, judicial is re compel cisions will be to the cities of straint, upon check our own bring knowledge- all facts and exercise of is our power own sense of go every which zoning into into- decision self-restraint. For the removal of un to justify courts those judges. decisions to wise appeal laws from the statute books Each property oppor- owner who sees an lies, courts, not to the but to the ballot tunity profit expense neigh- at the of his processes and to the of democratic gov community’s bors’ and his to, Butler, ernment.” United States v. expected aesthetic values now be 78-79, U.S. S.Ct. 80 L. Thus, challenge classification. Stone, Ed. (Harlan Fiske way the decision an area a zone certain J., dissenting). made, by organ have not once government job chosen for the under The eloquently, same sentiment was as if 50-1201, over-and-again I.C. by but concisely, Holmes, more stated Justice courts. “it must legislatures be remembered that Even if I were convinced that the guardians ultimate liberties support could be forced to its decision with- quite welfare of in people great record, out a respond- I find little what degree Missouri, as the Kan- courts.” ent has which offered would cause me sas May, & Texas R. Co. v. 194 U.S. shift appellant such a burden to 267, 270, 639, 48 L.Ed. S.Ct. appear action. There to be two circum- 971 (1904). upon stances majority gives The opinion lip-service majority rely arguing salutory principle that the actions of ordinance must fail. The first is legislative great bodies should be accorded non-conforming property there are other respect by in its courts discussion of the vicinity, uses in the and the is second “presumption” special, higher if has however, is reasoning, valid. The on this spot-zoned it is these “C-2.” Neither of point is “pre- incorrect. The force of the combination, facts, two alone sumption” original is that the decision made enough rezoning arbitrary support of Boise to zone this area “L-O” a court. was correct. action in The the district court essentially an appeal from this raised existence original non-conforming vi- decision of the other zone uses cinity accordance plan. with its master If re- has answers. The first two spondent City’s property very wished the to to overturn the lies close court, decision in boundary, general a it the should have built and some of the that property transmitted a record at the level commercial lies where which near City’s the long respondent juris- decision was As it is made. as is outside of the rationality zoning the zoning subject the diction commission not thus attacks, say decision respondent which it should that ordinance. To the cannot present way upon the it all factual basis which that zone area one if cannot reach in the central busi- obtain land property, within or without could not surrounding the hope- supermarket which limits, ness district for the hamstring to the would be city’s to community compre- they planned, right deter- had the lessly power a the destiny the its mine own determinative hensively regulate its was land-use within to ordinance, ap- Tenafly’s as saying that Idaho consideration. It be like borders. would case, plied respondents in was property con- that gambling has to allow on all confiscatory. upheld or the as unreasonable tiguous To the to Nevada. extent case, a premised respect a of That on majority opinion existence relies the city’s power and realities urban the the property outside unzoned commercial path for planning, limits, a indicates the correct city just such it commits this to follow. folly. Court ap upon non-conforming other factual remaining uses The foundation The spe- opinion, majority area the in its the zoning of the relies pear predate all to the filling sta- nearly always property such cial be will value There “L-O.” equally unpersuasive. For purposes, plan, a such new urban uses whenever respondent ef plan, put thing one into the evidence which comprehensive Boise’s city is, its support plan to offered to contention possible It is seldom fect. n starting another, planners light, best For beginning; the the insubstantial. from though less a fact their is irrelevant. must commence work even develop “strip” than desirable commercial may 'the hypothetical A brief illustrate have land uses ments and other aberrant the of this second foundation of weakness non-conforming Ultimately begun. the suppose majority’s might decision. We and, exist, to unless a court uses will cease that, station, respondent instead aof interim, has in the the area intervened sought to the stoclc- have used assigned the to it in take on the character j-ard sup- rendering plant. In order n city’splan. hap this is allowed Unless court, port re- position in its the district any pen, expected prior to a race be testimony spondent produce much would in an area’s annexation or other alteration qualified qualified but marginally whereby zoning speculators will seek land unprepared “experts” effect by beating zoning com the law avoid peculiarly situated to well Lomond, punch. Ben mission See plant. As stockyard rendering be a supra, 92 Idaho Inc. v. of Idaho such, they say, it would command would 606-610, (dissenting at 220-224 price $40,000 if it restricted while were n opinion). only zoned, it it uses for which was special $10,000. ra- Jersey last A case decided in New worth Under the Tenafly, N. July, Borough majority city have Forte tionale of would grant most J.Super. (1969), no choice but to a variance in A.2d chose, rendering stockyard Tenafly point. on this and allow instructive though years development plant. even Such would be the case .after of commercial purpose preclude planning retail fringes, all future obvious n development place area first could not but portions of “L-O” outlying by so Nor be frustrated “valuable” use. city busi and restrict it the central it only. a would matter values done as This was ness of the area landowners would be reduced part plan de comprehensive of a land-use they prop- pu had been under the signed from what rapidly progressing to stanch the erly Least city. enacted ordinance. trefaction of the core aes- all social recognized even would matter Jersey New Court n though by the sought values to be obtained in thetic owners city plan through comprehensive would retail that case had lots in the of a midst irredeemably respondents lost. business district that the 568

But, may argued, filling concepts a station of neighborhood be value to an entire true, rendering plant. community is not a That is but which our ancient may filling only slightly a less law of station be nuisance and emerging our law of disruptive quiet neighborhood. A fill- designed to a are protect. They fail ing by large, noisy tank- appreciation station is serviced understand that the of value open night long they trucks. It is at after allowing often Cole-Collister Fire most businesses are closed. It is necessar- Protection District to realize has been au- ily fumes, accompanied by thoritatively exhaust odors depreciate determined to all dirt, petroleum products, greasy other affected. Under the ma- penetrating headlight jority’s special beams. It is sur- rationale, respondent value by engine, warning being rounded horn and expense loud a windfall not, filling may bell neighbors noises. While a station of its expense and at the of the itself, generate traffic, City’s much comprehensive increased plan. There is noth- ingress egress provides ing therefrom a in the constitutions of Idaho brake tire-squealing, horn-honking ca- warrant, United States which would let cophony as well as an of compel, increased risk alone such a result. automobile The of accidents. introduction action, by requiring The decision in this gasoline a service station into what defend its decision meant to quiet be an of area uses will most novo, gives respect trial a de too little definitely damage proposed character competency of the land to control neighborhood. of the use within its boundaries. It also works special respondent’s injustice of a by respond-

The realization a manifest allowing profit expense value from use of ent to realize a at the therefore, filling will, at the neighboring must, therefore, occur station I landowners. expense City’s neighbor plan respectfully of the for the dissent. neigh

hood and of the values Rehearing Denial of Petition On boring predicated landowners which were City’s on the maintenance of the DONALDSON, Justice. then, seeks respondent, scheme. The has sub- City) appellant (Boise land, un use a manner found to be urges rehearing and petition mitted respon government suitable the unit has been burden that an “unwarranted” way sible, injure in a which will the land prove that placed upon City to nothing another or its value. This is interfere station would erection of Morgan more or less than a nuisance. See applicable goals articulated with the High Co., v. Penn Oil 77 S. N.C. statutes and ordinances. Co., ; Carney E.2d 682 Penn Oil appellant City) (Boise is evident that It (1928); 291 Pa. 140 A. cf. opinion and we will has misconstrued our Co., Tuscaloosa v. 221 Ala. Standard Oil reasoning as therefore strive to make our (1930) ; 130 So. National Refin therein, absolutely set forth clear. ing Batte, Co. v. Miss. So. 388, A.LR. system jurisprudence But see White In our lawof meanings Twin two distinct can denoted Firstly, singular proof.” term “burden proof” the “risk refers to “burden taking This is a of the and en- value nonpersuasion facts.” of the trier of the joyment respondent’s neighbors’ prop- erty. taking For that there should he com- in human affairs “Wherever pensation justice. as a matter a fact elemental the existence or nonexistence of This opinion majority somebody, is where the there is the to be decided decider, grievously. preoccupa- possibility errs most In their that the or trier fact, at the his deliberations end of larger to. they appreciate fail to be in doubt submittted him, Mathewson, he Idaho P.2d 680 before all the material him. On Inc., Homes, City (1956); v. Better the existence Boise example, regard may,. for equally Once fact or nonexistence overcome, now, presumption validity equipoise. 'likely matter in If/ —a City proof the burden of system shifted Boise under a operating the trier produce tending show that ques- evidence requires decide the him to other, would in erection of then avoid way or the tion one n caprice by goals fact interfere with the articulated system furnish him must regulations question. Having lost deciding with a rule for validity presumption at- aid of the when he finds mind this kind ordinance, zoning tached to its Boise parties to equipoise. (cid:127)doubt or Where fact, opportunity still had an i. to show dispute mate- civil action are in over a e., evidence, producing fact, party rial issue of then that who will placed may The burden was valid. equipoise if the trier’s mind is in lose Boise no means unwarranted. be said to bear the' risk that the trier produced however little or no affirmatively will not be persuaded or evidence, successfully nor it did discredit nonpersuasion upon risk of issue.” the evidence submitted Fleming, Procedure, James, Civil 7.6. owner. non-persuasion The risk of Rehearing denied. the trier of the through facts never shifts out the stages various of the trial. Gen

erally party asserting the claim bears nonpersuasion “risk of the of the trier bar,

of the fact.” In the case at Cole-Col lister (plaintiff-respondent) bore the “risk n ofthe nonpersuasion of the trier of 468 P.2d 301 fact” that the ordinance was arbi George BIERSDORFF, Plaintiff-Respondent, trary capricious applied to it. This risk bore from the start of the trial regardless (cid:127)end many of how Ray Virginia times the “bur H. BRUMFIELD Brum- field, wife; husband United States

den producing evidence” Cole shifted. America, Idaho, State of Pierce Trailer Collister bore the risk that it would lose Economy Equipment Company, Hard- the case if when all the evidence was in the Co., Broadway Splicing ware & Electric trier of the fact was in doubt as to the val Page Co., Inc., Page Supply, De- & idity of the ordinance. fendants, Page Page Co., Defendant-Appellant. concept & proof of burden of “production (cid:127)can also refer to evidence." No. 10280. beginning At the the trial in the instant Supreme Court of Idaho. n case, plaintiff-respondent, Cole-Collister March 1970. proof” bore the “burden of to show that the ordinance in was invalid. Rehearing April 27, Denied In plaintiff-respondent order to do (Cole-Collister) had to introduce evidence presumption validity overcome the at

tached to the presumption ordinance. This

is not conclusive and be overcome convincing

clear and evidence as was

presented by Cole-Collister this case.

White v. of Twin (1959) City P.2d 778 of Lewiston v.

Case Details

Case Name: Cole-Collister Fire Protection District v. City of Boise

Court Name: Idaho Supreme Court

Date Published: Mar 10, 1970

Citation: 468 P.2d 290

Docket Number: 10320

Court Abbreviation: Idaho