dissenting.
Justice Traynor, in discussing those parameters which ought to guide a court in considering changes in a non-conforming use under contemporary zoning statutes, noted that:
“ ‘The object of such provision (allowing non-conforming uses) is the gradual elim¡nation of the non-conforming use by obsolescence or destruction by fire or the elements, and it has been frequently upheld by the courts.’ * * * There is a growing tendency to guard against the indefinite continuance of non-conforming uses by providing for their liquidation within a prescribed period. * * * Given the objective of zoning to eliminate non-conforming uses, courts throughout the country generally follow a strict policy against their extension or enlargement.” San Diego County v. McClurken, 37 Cal.2d 683, 234 P.2d 972, 975 (1951).
See also, Cole-Collister Fire Protection District v. City of Boise, 93 Idaho 558, 468 P.2d 290 (1970).
The majority opinion holds that appellant had a valid non-conforming use, and that the alterations undertaken in 1971 did not constitute prohibited enlargement so as to require county approval. I disagree with that conclusion, and would hold that once Gordon Paving goes voluntarily before the Zoning Board to request a variance, they may not sit quietly for three years under the ostensible authority of the conditional variance only to complain when the time comes to pay the piper. I shall consider *734first the changes made in 1971 as prohibited changes of the non-conforming use, and will then address the effect of appellant’s request for a variance and acceptance of the conditional variance granted by the county.
I.
The oft repeated maxim that this court will not disturb the findings of the trial court when those findings are supported by substantial, although conflicting, evidence, bears recollection once again. Ready-to-Pour, Inc., v. McCoy, 95 Idaho 510, 511 P.2d 792 (1973). The trial court found that “This enlargement was more than a reasonable expansion. The non-conforming use was not the same before and after the passage of the ordinance.” That court then found that the changes amounted to a prohibited enlargement of the non-conforming use, contrary to § 24.316 of the Blaine County zoning ordinance. That ordinance provides “A non-conforming use shall not be enlarged or extended and a non-conforming building shall not be enlarged or extended so as to increase the degree of non-conformity.” The question properly before this court is whether there is substantial evidence to support the finding made by the trial court. The majority opinion attempts to undercut that evidence present on the record which supports the conclusion that Gordon Paving improperly altered its nonconforming use. I believe that the evidence in the record is adequate to support the trial court’s finding, notwithstanding the fact that I or the majority might have reached a different conclusion if placed in the trial court’s shoes.
The majority opinion first deals with the undisputed enlargement in the size of the asphalt plant. As the trial court notes, the enlargement is obvious from a comparison of the photographs introduced as exhibits. The majority rejects this conclusion by commenting that “Gordon Paving moved its rock crushing facilities to a new location when it modernized its asphalt plant. The size of Gordon Paving’s total operation was actually decreased after the modernization.” No authority is cited to establish the assumption made that a non-conforming user may remove one aspect of an operation from a site and simultaneously be allowed to fill in the vacated slot with a doubling of another aspect of the operation. I believe such an assumption is contrary to an avowed goal of eventually eliminating nonconforming uses.
A more accurate analysis is that Gordon Paving abandoned its gravel operation. The trial court in its decision makes clear that there were two separate components to the Gordon Paving business. The trial court found that “Exhibit 19 is the application of Gordon Paving Company to establish a gravel operation near Bellevue. This indicates that the original purpose of the purchase of the Hidden Hollow property was at an end.” It is well settled that a non-conforming use is considered abandoned once the owner relinquishes the particular use intentionally, and that once abandoned, the right to the non-conforming use is lost. 82 Am.Jur.2d, Zoning and Planning, §§ 215, 219 (1976). The gravel pit operation was abandoned by Gordon Paving. It does not suffice for the majority opinion to assert that the overall size of the business has not increased. Given the ultimate goal of eliminating non-conforming uses, Gordon Paving may not enlarge one operation, the hot-mix facility, merely because it moved out the gravel crushing operation.
The record additionally discloses a substantial increase in volume of output from the asphalt plant, which is apparently the result of the increased efficiency of the new asphalt plant. The majority opinion seizes upon a simultaneous decrease in operating time and concludes that, on-balance, there is no enlargement in the non-conforming use. This misses the point: to set-off increased volume with decreased present operating time ignores the critical possibility that the new productivity factor may in the future result in tremendous volume increases if operating time returns to present levels. I believe that the new machinery, with the great potential for even more volume, constitutes a prohibited enlargement of the non-conforming use. The majority opinion then notes that increases in volume are *735normally considered permissible changes in non-conforming uses. This represents some oversimplification. Increased volume is usually allowed, because to prohibit such would amount to discouragement of enterprise; a landowner would be penalized for a successful enterprise which in the natural course of progress grows in volume. This reasoning, however, is inapplicable when the increased volume results from new facilities. As Professor Anderson has observed:
“Unauthorized extension of use is frequently detected where intensified use is accompanied by some enlargement or improvements of existing facilities, or where new land is used. Where the courts have detected some qualitative change in the use, in addition to an increase in volume or intensity, they have disapproved on the ground of unlawful extension, or change, or both.” Anderson American Law of Zoning, § 6.45 (1968).
I would hold that the increased size of the asphalt plant, coupled with an increased volume output and potential for even greater volume increase in the future, when taken together constitute an enlargement prohibited by the Blaine County ordinance. I do not believe it can be said that there is a lack of substantial evidence to support the district court’s findings; this court should therefore affirm those findings.
II.
I also am convinced that the district court’s findings as to the following are critical:
“On May 12,1971, Gordon Paving Company filed an application with the Blaine County Planning and Zoning Commission for a variance to permit enlargement of its Hidden Hollow asphalt plant, by replacing the old plant with the new larger plant. * * * The Defendant, Blaine County Board of Commissioners contends that when the applications for a variance was made, the variance was granted with a condition that Gordon Paving move out of Hidden Hollow entirely by the end of the 1973 construction year. Defendants further contend that Gordon Paving Company did not appeal that decision imposing the condition, but installed the new plant and operated it under the authority of the variance * * *. One fact is paramount. At the time the condition to move the plant in 1973 was imposed, all parties believed the modified or enlarged plant was an enlargement of the non-conforming use. This belief was not challenged until the time for the performance of the condition arrived. * *.
I find that Gordon Paving accepted the condition, and that the variance created an advantage to it. Under these circumstances, Gordon Paving Company cannot now be heard to complain.”
I am convinced that this conclusion is sound. I would hold that a land-owner cannot seek a variance, be granted that variance with conditions, accept the variance for three years and then balk when the time comes to uphold its end of the bargain. The Colorado court reached a similar conclusion in Di Salle v. Giggal, 128 Colo. 208, 261 P.2d 499 (1953), when it held that:
“By his testimony, defendant admitted ownership of the lands; that they were in an A1 district; that his attempted use of the land for nine family units had been stopped; that he had agreed after the war housing emergency had ceased to reduce his housing units to five; that after said emergency had ceased, he had refused to do so; and that nine families are living on his lands. The trial court in effect found the zoning regulations and limitations were properly exercised in the present case, and reasonable, and that the regulations had been violated by defendant. Laches, estoppel and the one year statute of limitations do not here apply against plaintiffs; this would be particularly so where, as here, defendant had knowledge of the zoning provisions, entered into an agreement concerning same, and acted thereon to his benefit; he may not now by repudiating his agreement, thereby avail himself of said defenses.”
At any rate, it is irrelevant whether Gordon Paving would be estopped to claim the right to a non-conforming use as they lost that right to a non-conforming use when they enlarged the operation.
*736In this same vein, Gordon Paving claims that the condition imposed was beyond the rightful authority of the board and that a condition resulting in the total expiration of the operation cannot be imposed. However meritorious this position might have been in 1971, it is too late now to make such a claim. For three years, and more during the pendency of this appeal, Gordon Paving smugly accepted the advantages of the variance. They could have appealed when the condition was imposed, but did not. They cannot now be heard to cry that the variance they accepted and used was improper. This position is well supported in case law, and I believe it to be applicable. Edmonds v. Los Angeles County, 40 Cal.2d 642, 255 P.2d 772 (1953); Zweifel Manufacturing Corp. v. City of Peoria, 11 Ill.2d 249, 144 N.E.2d 593 (1957); Nathanson v. D. C. Board of Zoning Adjustment, 289 A.2d 881 (D.C.App.1972).
SHEPARD, J., concurs.