Planning Law

Plan 754, Fall 2000

Professor: John Keller

By; Stephanie Campbell

Tracy and Sharon Baxter, Plaintiffs/Respondents v. The City of Preston, Defendant, and Thayne Corbridge and Colleen Corbridge; Verlan Corbridge and Rena Corbridge, Defendents/Appellants

Supreme Court of Idaho; 115 Idaho 607; 768 P. 2d 1340

February 13, 1989

KEY WORDS:

Zoning Ordinance Zoning Pattern Traditional Zone

Nonconforming Use Parcel(s) Grandfather Right

BACKGROUND:

v Effective February 15, 1979, The City of Preston adopted Zoning Ordinance no. 443, which established the following zones in the city: Residential, Transitional, Business, and Industrial. All of the property within these categories falls within the “transitional” zone.

v The ordinance was intended to create a transitional buffer zone between agricultural areas and residential development. Conforming uses in the transitional zone are residential; all others are nonconforming.

v Chapter 1 @6 of the ordinance provides that the “zoning pattern is not intended to eliminate agricultural uses within the city. It is however, intended to discourage the establishment of new agricultural operations within the city limits.

v Chapter 3 Section 1 states: Intent. It is the intent of this ordinance to permit nonconforming uses to continue until they are removed but not to encourage their survival. It is further the intent of this ordinance that nonconforming uses shall not be enlarged upon, expanded or extended nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

FACTS:

v Prior to 1984 Thayne Corbridge allowed 20 head of cattle to graze on two abutting parcels of his land. The parcels are separated by a concrete draining ditch.

v Corbridge would farm the western parcel, and once harvested, the cattle would graze on both.

v Prior to 1984, the cattle were not fed hay or silage on the parcels, nor were they stored there through the winter. However, in 1984 Corbridge constructed a portable manager and a shed on the eastern property. Manure accumulated. He hauled hay to the cattle and kept them on the premises throughout the year.

v In essence Corbridge set up a food lot.

v The trial court granted plaintiff Baxter’s request for an injunction requiring Corbridge to return to his pre-1984 method of farming on the basis that the use of the premises on a year round basis is an expansion or extension of a nonconforming use in violation of a Preston City zoning ordinance.

RULING NOTES I:

Ø Plaintiff Baxter tried unsuccessfully to get the City of Preston to enforce the ordinance against Corbridge. The City refused. Baxter thereafter brought suit against both the City and Corbridge. The action against the City was dismissed with prejudice after the City agreed that if Baxter was successful in the action against Corbridge, the City would enforce the ordinance.

Ø The trial court held:

1) Corbridge’s historical use, and the use which he is entitled to continue under the ordinance, is limited to 20 head of cattle to forage on the eastern parcel in the summer; that after harvesting, the cattle can forage on both east and west parcels.

2) When winter makes grazing unfeasible, the livestock must be removed; and that Corbridge’s conduct in the use of the parcels on a year round basis (i.e. storing and feeding the cattle) is an expansion or extension of a non-conforming use “prohibited” by the ordinance.

3) The trial court ordered Corbridge to remove the portable manager, holding corrals, accumulated manure, silage and feed on the eastern parcel.

4) Corbridge appealed that decision.

RULING NOTES II:

Ø The issue now before the court is whether, under Preston ordinance No. 443, Corbridge’s change in the utilization of his property from its former use of merely grazing cattle, to thereafter establishing a feedlot on the property, is of such character that it now constitutes and unlawful nonconforming use.

Ø The trial court ruled:

1) Corbridge’s use of his property constituted an unlawful nonconforming use. “Nonconforming use” means a use of land which lawfully existed prior to the enactment of a zoning ordinance and which is maintained after the effective date of the ordinance.

2) The “grandfather right” as stated in another Idaho case protects the owner from abrupt termination of what had been a lawful condition or activity on the property. The protection does not extend beyond this purpose.

3) The owner of a nonconforming use may lose the protected grandfather right if the use is enlarged or expanded in violation of a valid zoning ordinance.

RULING NOTES III:

Ø First the trial court found that as a result of the feedlot operation established by Corbridge manure on the property accumulated, thereby annoying neighboring property owners.

Ø While the court did not find a nuisance in the instant case, the court did consider the fact that:

1) Accumulated manure had an immediate affect on the neighboring owner’s

comfort and utility of their residences.

2) The Preston ordinance specifically prohibits the construction of additional

structures to further a nonconforming use.

3) The character of the use has changed.