*1 arrange lines by a desire to vated boundary there' that each benefit and would
so other in their each be no interference with respective contract was the projects. The iron out diffi-
result this desire present had been would have culties lands government conveyed all of the ap- initially requested by appellant in its plication in it held exchange for the sections an at- tax title the result of and was not
tempt pur- bidding or to interfere with the pro- sale
chasing of land offered scribed Title U. Code. Section S. Affirmed. Costs to McDonough, henriod, callis- TER, CROCKETT, JJ., concur.
No. Supreme Court of Utah.
Aug. 4, 1961. Re- basis.
station on No costs awarded. versed. admittedly lies
an area residential. that in 1953 was zoned years, Thereafter and for a number of how- ever, county the assessor and assessed listed it as commercial A small store building stood on the It a corner lot lot. at the intersection of what will be two main highways. arterial The store has been va- early cant since as as applicant earlier. permit The for the exe- purchase cuted a contract to July, it about September, 1960. It burned down in November, year, same applicant the for the to build to sued obtain the man- question. Nothing in date anything as predecessors reflects to whether had intended to interest abandon the use County Atty., Giles, Lake A. Salt Grover store, property as of the a and under the Coun- Deputy Lake Nielsen, Salt E. Gerald here facts we think the matter uncon- City, defendant for ty Atty., Lake trolling. Salt appellant. urge authorities The the 1) contemplated use of the for gas a City, Lake Faust, Salt E. being üse, a nonconforming station the bur- plaintiff applicant on prove right was the to a den property, to such use of HENRIOD, Justice. sustained; prop- was not 2) that since the requiring the a mandate Appeal from period was erty vacant at least for a of a build- issue zoning authorities to county years continuously one-year after the fire, ordinance1 of a service until the construction permit for nonconforming use, is, 8-4-6, or Ordinance a here of See. Utah, 6, 1958, becomes, as vacant and remains Dec. after unoc building nonconforming a use “A or for a 1957: June amended period (1) year occupied portion of one thereof continuous or structure pro a 2): As there was of to Since there was an abandonment effective vacancy and period unexplained tracted subse- of nonconforming use, precluding quent showing any nonconforming use purposes; of use save residential ap four 3) assert county estopped years, that the to five continuous is not pear requirement because Section 8-4-6 of the operates prop- erec erroneously assessor had listed this case to ap tion of anything commercial. but residence a plicant, estopped county unless the applicant a denial counters with prop deny right a of the of commercial use so, contentions, that, these and adds erty, or unless the ordinance is unconstitu one-year is un- abandonment ordinance tional. constitutional. unrea estoppel: As It would be 1) held that : It is
As claiming use sonable unrealistic to conclude the burden proof to show such clerk or a having no au ministerial officer prior established date effective thority so, county do could bind *3 of the zoning and continued ordinance duly variation zoning of a 2 date.” nothing There everyone its notice show that such Con sustained. passage publication, a minis because trariwise, it appli was negatived employee terial characterizing erred in cant’s testimony own he knew the type of generally The authorities property to have been vacant for four support conclusion,5 such a are con and we years acquired before he an interest strained to and do hold that assessor’s taking therein.3 property with knowl description subject prop erroneous edge many years that for it has not been as commercial does not employed for a nonconforming use takes zoning denying authorities from to the against restriction that use.” service station. dwellings, years shall not thereafter be oc use for more than two conclu- except sively presumed a use which conforms to be abandon- regulations ment, the use ours, of the zone in under an ordinance similar which it is located.” for time limitation. Rhyne, Municipal Law, Zoning 2. McQuillan, Corporations, 3d 4. 32-27, p. Revised, Sec. 25.191, p. 906. Ed. Vol. 491. Adjustment, Metzenbaum, Auditorium Zoning, v. Board of Law of Second Edi- Terry 373, tion, seq.; V-t, 47 Del. 91 A.2d Ch. 162 et 1 A.L.R.2d it was held that nonuser of a nonconform- et P.2d 1115 the ordi
As to the contention one depriving nance is unconstitutional Plaintiff, DIXON, Verl G. au process, of due without or thorities conclude al., Defendants. PROVO CITY COUNCIL pur isolating dinances areas No. 9522. commer poses constitutionally may exclude enterprises.6 cial and industrial Supreme Court of Utah. July 29, 1961. laymen us Offhand, strike it would intersecting two corners of that on the an immense carrying highways,
multilaned rep not traffic, amount residences use, highest best resent But justified. might be variance our substitute position we are duly constituted judgment for that of arbitrary. zoners, quite if not J., WADE, and McDONOUGH C. CALLISTER, JJ., concur.
CROCKETT, (concurring). Justice paragraph the last except as to
I concur n ofthe observa- opinion makes main possible zoning and a regard to tions variance. were, concern, if not our
This *4 in the many not disclosed factors are there neces- it would be before us record making decision before to consider sary thereon. comment well-advised 447, 829; Co., Euclid, Realty Foundry, Utah 187 P. v. Ambler Ohio Rhyne, Law 71 L.Ed. S.Ct. U.S. 32-2, City 1016; v. Western A.L.R.