(dissenting) .
This is a class action brought by some of the owners of those lots abutting on Thomas Road between Twenty-fifth Place and Twenty-eighth Street, a distance of about three ordinary city blocks. None of the •evidence disputed the fact that all of the frontage in question is eminently suitable for commercial purposes.
Thomas Road is the second busiest east .and west arterial within the city, having at about the time of the city’s annexation an . average traffic flow at Twenty-fourth Street • of 17,260 motor vehicles daily. Approximately 65% of the frontage between Twenty-fifth Place and Twenty-eighth Street was zoned commercial on April 19, 1955, the date of the city’s annexation. Commencing on the south side of Thomas Road 1,600 . feet west of the area in question and on the north side about 900 feet west, all of the abutting property was zoned commercial. Commencing at Twenty-eighth Street and running approximately 2,800 feet east the abutting property was zoned commercial. Hence, squarely in the middle of an area approximately 6,400 feet in length zoned commercial is an island which while eminently suitable for commercial development has been re-zoned by the city to R-5, residential.
Such a practice is commonly known as “spot zoning”.
“A zoning ordinance or amendment of the present type creating a small zone of inconsistent use within a larger zone is commonly designated as ‘spot zoning.’ ” Penning v. Owens, 340 Mich. 355, 65 N.W.2d 831, 836.
Spot zoning is almost universally held to be arbitrary, discriminatory and invalid. Kissinger v. City of Los Angeles, 161 Cal. App.2d 454, 327 P.2d 10; Rockhill v. Chesterfield Township, 23 N.J. 117, 128 A.2d 473; State ex rel. Miller v. Cain, 40 Wash. 2d 216, 242 P.2d 505; State ex rel. Scandrett v. Nelson, 240 Wis. 438, 3 N.W.2d 765. It tends to sabotage the fundamental purpose of the zoning statutes requiring the division of land into districts “for trade, industrial, residential or other purposes”. A.R.S. § 9-461.
“A classification in a municipal zoning ordinance must be based on natural *22distinguishing characteristics and must bear a reasonable relation to the subject of legislation, must be founded upon distinctions reasonable in principle and have a just relation to the subject sought to be accomplished, and must be based upon substantial difference between the situation of such class or classes of other individuals or classes to which it does not apply.” (Emphasis supplied.) Rawlins v. Braswell, 191 Tenn. 285, 231 S.W.2d 1021, 1022.
There are no natural distinguishing characteristics or substantial differences between the “island” properties of appellees and the adjacent properties which were zoned commercial. Therefore, the difference in classification of properties of a similar nature on Thomas Road is manifestly without a reasonable basis. The majority wholly ignore this fundamental concept and for this reason alone the trial court should be affirmed in its judgment.
Second, it is contended by appellees and supported by the facts that here is a case involving re-zoning. If so there is thus brought into application different principles of law than involved in original zoning. It is the rule that to justify re-zoning there must be a substantial change in conditions in order that there be a valid exercise of the police power. Charnofree Corp. v. City of Miami Beach, Fla.1954, 76 So.2d 665; Zilien v. City of Chicago, 415 Ill. 488, 114 N.E.2d 717; Trenton Development Co. v. Village of Trenton, 345 Mich. 353, 75 NW.2d 814; Page v. City of Portland, 17S-Or. 632, 165 P.2d 280. New and additional facts must appear or other considerations-materially affecting the merits must be-shown to have intervened since the original zoning was adopted. Strain v. Mims, 123-Conn. 275, 193 A. 754.
The county established commercial zoning on the majority of the lots in the area under consideration. The city zoning ordinance of December 27, 1955 changed the prior zoning. The majority dismiss the appellees’ argument that this is re-zoning by citing Hart v. Bayless Investment & Trading Co., 86 Ariz. 379, 346 P.2d 1101 to the effect that the Maricopa County Zoning Ordinance covering this area at the time of annexation was, some two years later declared void due to fundamental error in its-enactment and conclude that there was no« legal existing ordinance covering this property at the time of the annexation. Property owners in this area had relied upon the existing county zoning. Property had been bought and sold and developments planned in reliance on the ordinance.
The operative fact of the county ordinance should not be denied, since, for all practical purposes, it was treated as valid many years before the city’s annexation^
“Although it was formerly held that an unconstitutional statute is a nullity ab initio (see Norton v. Shelby County, *23118 U.S. 425, 442, 6 S.Ct. 1121, 30 L.Ed. 178, and Chicago, Indianapolis & Louisville Railway Co. v. Hackett, 228 U.S. 559, 566, 33 S.Ct. 581, 57 L.Ed. 966), more lately it has been recognized that the consequences of action taken or restricted in obedience to the requirements of a statute which subsequently is declared unconstitutional are to be appraised and adjudged in the light of the compulsion exerted by the statute prior to its determined invalidity. In Chicot County Drainage District v. Baxter State Bank et al., 308 U.S. 371, page 374, 60 S.Ct. 317, 318, 84 L.Ed. 329, Mr. Chief Justice Hughes, speaking for the Supreme Court, after specifically referring to the Norton and Hackett cases cited supra, said, ‘It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects,—with respect to particular relations, individual annd corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination.’ * * ” J. A. Dougherty’s Sons v. Commissioner of Internal Rev., 3 Cir., 121 F.2d 700, 702.
The majority’s conclusion gives too technical an application to our opinion in the Hart case, supra. People’s rights were determined under the zoning and its provisions were scrupulously enforced.
In my opinion, the majority err for another reason in this conclusion. At the time of the annexation all the city’s ordinances became effective in the area in question. Mr. John W. Beatty, Planning Direct- or for the City of Phoenix, testified that Phoenix Municipal Ordinance, Section 104, paragraph C, subsection 1, relating to zoning of newly annexed territory provided:
“Areas, when annexed to the City of Phoenix, shall, until officially zoned by the City Council of the City of Phoenix, be considered to be zoned as shown on the Official Zoning Map of the Maricopa County Planning and Zoning Commission.” (Emphasis added.)
The City of Phoenix Ordinance 104 does not use the words “valid zoning ordinance” nor does it refer to any existing county “ordinance”. It states that the newly annexed property will be considered to be *24zoned as shown on the county’s official zoning map. At the time of annexation the county zoning map, introduced into evidence, showed commercial zoning of a majority of properties in this area and it so remained for over eight months after the city’s annexation—that is from April through December 1955.
Property owners are entitled to rely on zoning with the knowledge that it will be more or less permanent and subject to change only to meet genuine changes in conditions. Northwest Merchants Terminal v. O’Rourke, 191 Md. 171, 60 A.2d 743. They are entitled, in conducting their private investments, to the benefit of the rule that re-zoning is not a valid exercise of the police power unless there is a showing of “substantial change of conditions” in the character of the area changed.
As a consequence of their peculiar view of the laws of the case the majority have applied the rule that there is a presumption of validity applicable to zoning ordinances and that the party objecting to the ordinance has the burden of showing the unconstitutionality thereof. The presumption of validity does not apply with as great a force in re-zoning. Wakefield v. Kraft, 202 Md. 136, 96 A.2d 27; Northwest Merchants Terminal v. O'Rourke, 191 Md. 171, 60 A.2d 743, 752. In the latter case it was held that the presumption of validity:
“applies to rezoning as well as to original zoning * * * but not with the same weight. Indeed, it creates a counter-presumption that zones are ‘well planned and arranged’ and are to be ‘more or less permanent’, subject to change only to meet genuine change in conditions.”
In the present case the presumption of validity should be given no weight whatsoever. There is not a scintilla of evidence to show any change of condition from a. commercial use. To the contrary the evidence on behalf of appellees establishes, that the property fronting Thomas Road', in this area was initially farming and residential but that progressively over the past years its residential uses have been abandoned and according to appellees “is not. suitable for residence anymore”. Indeed this testimony alone is sufficient to discharge-any presumption of validity since it is the-unbroken holding of the Court that presumptions retire in the face of any positive.proof.
“ * * * ‘Presumptions may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts.’ * * * Seiler v. Whiting, 52 Ariz. 542, 84 P.2d 452, 455
I am of the opinion that the judgment-of the court below should be affirmed for the reason that the appellant City of Phoenix failed to establish a change of conditions reasonably requiring re-zoning.
*25Third, the court below in its memoran■dum opinion found that no reasonable basis ■of health, safety or public welfare required the limitation and restriction of the appellees’ property to a residential classification. 'The question then is whether this conclusion of the trial court is justified. Evi•dence in an attempt to substantiate the re.zoning was given by one Hugh R. Pomeroy, .an alleged expert for the city on social planning. He examined various maps, primarily of the city zoning and then drove ■over the entire metropolitan area on most ■of the major thoroughfares rather generally criss-crossing in and around the city.1 The ■essence of his testimony was his personal ■opinion that the “clustered or shopping •center type development” is superior to what is called “strip” commercial development along the arterial roads. His reason .for this opinion was, as he stated:
“Modern business development insofar as it is given an opportunity to do so, under zoning, tends to go to designated area development rather than marginal strip development and modern planning undertakes to facilitate the operation of economics through the activities of private enterprise in that way.”
Since no factual matters were offered te» support his private ultimate opinion and none could be developed from him on cross-examination, the testimony is no more than a personal conclusion of the way things ought to be! 2 The witness’s supporting testimony can be paraphrased more forthrightly thus:
“Modern business development insofar as it is compelled to do so, under zoning, must go to designated area development, etc.”
Some testimony developed that there was ample strip zoning along Thomas Road between Central Avenue and Fifty-sixth Street. That other property had been zoned commercial, sufficient to satisfy the needs of the community in the expert’s *26opinion does not justify the denial of proper zoning for appellees’ property to the use for which it is best suited. Moreover, the facts belie the inference that the city’s action was not arbitrary. Within seven months after the re-zoning of appellees’ property the city commission re-zoned on Thomas Road to commercial 112 acres, 12 acres on April 24th, 1956 near Thirty-second Street, 60 acres on July 31st, 1956 between Thirty-sixth Street and Fortieth Street and 40 acres on August 7th, 1956 near Forty-fourth Street.
The majority in part base their decision on the testimony that commercial zoning in this area would create additional traffic hazards “which clearly relate this ordinance to the police power over safety”. In this respect the testimony by Mr. John W. Beatty, City Planning Director was:
“By the establishment of strip zoning—strip commercial activity along these arterials with the required curb cuts and driveways necessary to permit people to get into the places of business, and get out of the places of business, each one of these curb cuts adds a conflict as far as traffic movement is concerned. These various points of conflict thereby lessen the traffic-carrying capacity or they decrease the traffic-carrying capacity of this arterial, which is one of its main functions, to carry people from here to here. It creates points of conflict which in effect are hazardous over-all.”
As the trial judge pointed out, this same line of reasoning is applicable to both strip and shopping center areas. Each motor vehicle whenever it seeks ingress or egress, onto a public highway must add a point of conflict, “hazardous over-all.” But since it is the only ostensibly valid reason assigned for denying commercial zoning to appellees, it should be examined in more detail.
Article II, Section 17 of the Arizona Constitution, A.R.S., provides that “no private property shall be taken or damaged for public or private use without just compensation.” Others with like properties, are permitted commercial development in this area irrespective of traffic conditions. A classification which deprives appellees of a substantial value of their property by depriving them of a similar use of the public highway should be held to be a confiscation for the benefit of the public and the other private property owners.
In addition, I am of the opinion to deny appellees the right to fully use the property on such a flimsy pretext violates Article II, Section 13, of the Constitution providing that:
“No law shall be enacted granting to any citizen, class of citizens, or corpo*27Tation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all •citizens or corporations.”
The right to use the public highways for ingress and egress should be available upon the same terms and conditions equally to all property owners having like property characteristics. Changes in zoning regulations must be uniform and not discriminatory among property owners. Carole Highlands Citizens Ass’n v. Board of County Com’rs of Prince George’s County, 222 Md. 44, 158 A.2d 663; Freeman v. City of Yonkers, 205 Misc. 947, 129 N.Y.S.2d 703; Callanan Road Imp. Co. v. Town of New-burgh, 6 Misc.2d 1071, 167 N.Y.S.2d 780, affirmed 5 A.D.2d 1003, 173 N.Y.S.2d 780, and they are invalid where establishing special privileges. Mathis v. Hannan, Ky. 1957, 306 S.W.2d 278; Edgewood Civic Club v. Blaisdell, 95 N.H. 244, 61 A.2d 517.
The validity of this zoning based upon the social planner’s concept of the way things ought to be can find no justification in the public health, safety and general welfare if constitutional principles are adhered to.
The judgment of the court below should be affirmed
JENNINGS, J., concurs in the foregoing dissent.. The City of Phoenix- was orginally laid out with reference to the Salt River Base & Meridian. All the land was homesteaded, the principal roads being established on the mile section lines. As the city grew and housing replaced farming, commercial establishments, retail trade outlets, developed along the main arterials. Thomas Road is a main arterial being two miles north of Washington Street, the principal east-west highway.
. As a further example of the basis for his opinion, and perhaps, of his less specious testimony:
“As we get into the areas that are more open, including those most recently annexed from the unincorporated territory, the county, we see the reflection of the opportunity that the City had to zone more in accord with the modern practice of business development, which is a reflection of the manner in which private enterprise serves the demand for business property in terms of what might be called the dynamics of the market as ■ to the area of business buildings in relation to automobile parking and automobile access areas.”