(dissenting).
I cannot let the decision of the majority pass without expressing both disagreement with their conclusions and my dissatisfaction with the action of the Adjustment. Board of the City of Phoenix in granting a use permit for a night club type business in the center of one of the finest residential areas of the City of Phoenix.
The Ranch House Inn was originally an expensive home like other property on Central Avenue. As the attorney for appellants stated in his opening remarks to the City of Phoenix Adjustment Board:
“[T]o the north we have homes all up' Central Avenue in the $50,000 to $75,000 category; * * * Immediately contiguous to the back of the property and *584west, we have homes in approximately the $30,000 category. Immediately to the south, we have homes in approximately the $25,000 to $30,000 category, immediately adjacent. Across the street, we have homes in the $30,000 to $40,000 category * *
In 1958, the owner of the Ranch House Inn rented seventeen rooms as a winter resort and apparently, principally for the convenience of his guests, operated a small dining room of eight tables with a seating capacity of forty-three people. That year the property was sold and the new owner, just prior to the annexation of the area by the City of Phoenix in April of 1959, doubled the rentals to thirty-four units and increased the dining room from 43 to 150 seating capacity. After annexation the owner applied to double the size of his operation under the permissive expansion of nonconforming uses section of the Phoenix Zoning Ordinance, § 106(a) 1. This was grant'éd'b'y the Adjustment Board although the use had already been more than doubled shortly before while the property was under county zoning, see Hart v. Bayless Inv. & Trading Co., 86 Ariz. 379, 346 P.2d 1101, and although the Phoenix ordinance required a finding that the use was not detrimental to adjacent property and the neighborhood.
In 1961, again with the knowledge and permission of the Adjustment Board, the use was further expanded. A hard liquor license was authorized for the premises and immediately a service bar and cocktail lounge, with public dancing, also specifically authorized by the Board, and Las Vegas type entertainment, were instituted. At various times billboards were put out in front of the premises with search lights; parties were held around a swimming pool until 1:00 o’clock a. m. with the pool itself open to the public; Kleig lights and outdoor electrical signs were erected stating “Hotel” and “Lobby”.
So, within a short space of time, the modest establishment once known as the Ranch House Inn, its name now changed to the Ralph Gaines Colony Steak House, increased its dining capacity from 8 tables to 300 people and wholly altered its character to a night club type of operation. All this was imposed upon the people of this residential area while under either county or muncipal zoning and, of course, contrary to the spirit and purpose of all zoning. It must be emphasized that not only was the nonconforming use increased contrary to the law cited hereinafter but the very nature of the business was changed from a modest winter resort inn to a Las Vegas type roadhouse.
The intent, purposes and objectives of zoning have been discussed by the courts of nearly every state and are well understood. That there be no misunderstanding as to the nature of the legal rights here involved, I extensively quote the views of the.Supreme Court of California:
“The rights of users of property as those rights existed at the time of the adoption of a zoning ordinance are well recognized and have always been protected. Yokley, Zoning Law and Practice, § 132, p. 255. Accordingly, a provision which exempts existing nonconforming uses is ordinarily included in zoning ordinances because of the hardship and doubtful constitutionality of compelling the immediate discontinuance of nonconforming uses. County of San Diego v. McClurken, 37 Cal.2d 683, 686, 234 P.2d 972. However, the continued nonconforming use must be similar to the use existing at the time the zoning ordinance became effective, see Rehfeld v. City and County of San Francisco, 218 Cal. 83, 21 P.2d 419; City of Yuba City v. Cherniavsky, 117 Cal.App. 568, 4 P.2d 299, and in determining whether the nonconforming use was the same before and after the passage of a zoning ordinance, each case must stand on its own facts. Yokley, Zoning Law and Practice, § 135, p. 261.
* * * * * *
*585“The purpose of zoning in effecting the crystallization of present conditions and the constructive control of future development was recognized in the case of City of Yuba City v. Cherniavsky, supra, 117 Cal.App. 568, at page 573, 4 P.2d 299, at page 301, where it was stated: ‘If there is no limitation upon the character or location of a nonconforming business, so long as it is located on the same lot where it formerly existed, then one may abandon an inexpensive notions counter which was maintained prior to the adoption of a zoning ordinance, and construct in lieu thereof an elaborate mercantile establishment at the opposite end of the same lot, at an unlimited expense, and thus circumvent and destroy the very purpose of the ordinance.’
“There is little difference in principle between enlarging a grocery business through relocation on a different part of the same property, as was the situation in the cited Yuba City case, and enlarging a trailer court business -through the addition of trailer units for- the housing of more people. In either situation the enlargement of the nonconforming business would involve a detrimental effect on surrounding property values in a residential area, as well as conflict with the purpose of zoning to restrict rather than extend the ‘existing’ nonconforming use. In Pisicchio v. Board of Appeals of Village of Freeport, 165 Misc. 156, 300 N.Y.S. 368, at pages 369-370, it was appropriately said: ‘Unless owners of nonconforming uses in zoning areas are required to adhere to the excepted use in volume of trade as well as character of business, zoning laws will be rendered ineffectual and such favored parcels of property will assume great values based not upon a natural growth, but upon the right of the owner to extend and enlarge the existing nonconforming use.” Edmonds v.
Los Angeles County, 40 Cal.2d 642, 255 P.2d 772, 777, 778.
It should be repeated; the spirit underlying zoning is to restrict rather than to increase nonconforming uses. To that end it has been held by the most respected courts in the country that nonconforming uses are to be eliminated as rapidly as possible. They are not to be rebuilt or renewed and statutes permitting nonconforming uses are to be strictly construed against the nonconforming user. See Baccante v. Zoning Bd. of Appeals of City of Bridgeport, 153 Conn. 44, 212 A.2d 411; DeForest & Hotchkiss Co. v. Planning and Zoning Commission of Town of Madison, 152 Conn. 262, 205 A.2d 774; Franklin Planning and Zoning Commission v. Simpson County Lumber Co., Ky., 394 S.W.2d 593; Building Inspector of Malden v. Werlin Realty, Inc., 349 Mass. 623, 211 N.E.2d 338; Inhabitants of Town of Windham v. Sprague, Me., 219 A.2d 548; South Central Imp. Ass’n v. City of St. Clair Shores, 348 Mich. 153, 82 N.W.2d. 453.; Arsenault v. City of Keene, 104 N.H. 356, 187 A.2d 60; Borough of Demarest v. Heck, 84 N.J.Super. 100, 201 A.2d 75; Betts v. Board of Adjustment of City of Linden, 72 N.J.Super. 213, 178 A.2d 209; Hantman v. Randolph Tp., 58 N.J.Super. 127, 155 A.2d 554; Franmor Realty Corp. v. LeBoeuf, 201 Misc. 220, 104 N.Y.S.2d 247, affirmed 279 App.Div. 795, 109 N.Y. S.2d 525, appeal denied 279 App.Div. 874, 110 N.Y.S.2d 910.
For example, the Supreme Court of Connecticut stated, in Farr v. Zoning Board of Appeals of Town of Manchester, 139 Conn. 577, 587, 95 A.2d 792, 796:
“It is a fundamental principle of zoning that, while it is deemed necessary to permit the continuance of nonconforming uses which existed when the zoning regulations were adopted, the aggregate extent of such uses is to be reduced as rapidly as destruction of the property * * * occurs.”
*586For, as the Maine Court said in Inhabitants of Town of Windham v. Sprague, supra:
“Nonconforming uses are a thorn in the side of proper zoning and should not be perpetuated any longer than necessary.” 219 A.2d 548, 552.
The powers of the Board of Adjustment of the City of Phoenix are set forth in Section 109 of its Zoning Ordinance G-449. Paragraph (b)3 of Section 109 provides that the Adjustment Board may:
“grant those special exceptions designated as use permits * * * upon a finding by the Board * * * that the use covered by the permit, the manner of conducting the same, and any building which is involved will not be detrimental to persons residing * * * in the vicinity, to adjacent property, to the ■ neighborhood * * *.”
'The ordinance also provides that the burden of proof for satisfying these requirements “shall rest with the applicant.”
As to the burden of proof, this is the evidence upon which the Adjustment Board acted in granting a use permit under Section 109:
1. A Mrs. Sobol, who lived at 'least three blocks away stated to the Board, “I am not opposed to the rebuilding of the Ranch House Inn * * * My children, I feel, are living in an excellent area, and I feel that it will not hurt them, nor will it benefit them, to have this structure there.*
2. A Mr. Rosenberg, who lived more than five blocks away but who at that time did not even own a home in the area, stated: “One of the reasons I am here is because of Ted Schafer because we are both at the school together at Madison Meadow. He’s the’ coach of the kids on the peewee league, and I feel his character should come before any type of this belly dancing which some may have in the back of their mind because I know we are against that;
3. A Mr. Rabin said that he and his brother lived across the street from the Ranch House Inn. They liked night clubs. “ * * * we have enjoyed the entertainment over there many times. We’ve had parties of our own at our own home and have never been disturbed by *587anything there. * * * It’s a night club like all night clubs that we have today, and I think it would be a good thing to continue, * * * ” **
Other than the architects’ plans for rebuilding the structure destroyed by fire, the foregoing is the whole of the evidence upon which the Board of Adjustment made a-determination that this night club would not be detrimental to the adjacent property and to the neighborhood.- The statements— relied on by the majority — of three persons out of an entire area that they are not opposed to or would like to see this night club rebuilt is not evidence that the use would not depreciate the adjacent property or be detrimental to the neighborhood.
A more blatant example of the thwarting of the purposes of zoning by the inroads of a nonconforming use can hardly be found. This community of fine homes has been downgraded to the detriment of its inhabitants and the whole of the City of Phoenix because, in .the language of the Supreme Court of California, this favored parcel of property has been allowed to assume a great value based not upon its natural growth but upon the right of the owner to extend and enlarge the existing nonconforming use.
The Adjustment Board, it should be stated, sought to soften the impact of this business of drinking and continuous carousal, so obnoxious to so many people, by placing conditions upon the use of the premises, such as, no excessive exterior lights, outside loud speakers or outside serving of food and drink. This begs the real issue. The Adjustment Board only has jurisdiction to grant a use permit if there is reasonable evidence that the use and the buildings involved will not be detrimental to adjacent property and to the neighborhood. I am unable to find one iota of reasonable evidence to support such a determination. Nor am I able to find any provision in the Phoenix Zoning Code which permits such a change in a nonconforming use as has here occurred — a change from an inn providing meals for its guests at reasonable hours to a night club, roadhouse type establishment serving liquor and entertainment indiscriminately to the public. I think it is outrageous. j
The action of the Adjustment Board was arbitrary and capricious. This Court should direct that the use permit be forthwith cancelled, with instructions to grant as a maximum such a permit as is consistent with .the use made of the premises at the time the property was annexed into the City of Phoenix, and no more. This means that the hard liquor and entertainment should be eliminated and food should be served only at the usual mealtime hours.
Since from this and the subsequent two witnesses the majority are able to find that the use would not be detrimental to persons, adjacent property or the neighborhood, their testimony is set out verbatim.
. “My name is Mrs. Samson Sobol, and I live at 317 West Montebello. And I really wasn’t going to'say anything until Mrs. McGinty sort of made my feminine dander rise. We live in this area, and we have children. We are home owners, and I certainly do not approve of the existence of anything in an area which creates any sort of discord with the mores of the community. I am no.t opposed to the rebuilding of the Ranch House Inn as it is proposed by Mr. Burch and the owners. My children, I feel, are living in an excellent area, and I think that it will not hurt them, nor will it benefit them, to have this structure there.” . \
. “My name is Lewis. Rosenberg, and I reside at 509 West Solano Drive in the area, and I have two children who go to the Madison Meadows School, and we are on the verge of purchasing a home in the area now. We have lived there approximately a year and that is just about getting ready to go into escrow. The only fault that we have found is that the building is burned down, and the people who visit us has made comment on it, and I was shocked listening to these speakers because it frightened me on whether .we wanted to stay in the neighborhood. But we have found the neighbors very nice, and we have,.found the neighborhood very nice, and I feel the area should be built up. One of the reasons I am here is because of Ted Schafer because wo are both at tire school together at Madison Meadow. He’s the coach of the kids on the peewee league, and I feel his character should come before any type of this belly dancing which some may have in the back of their mind because I know we, are against that; but we are for rebuilding the area and hoping that their character will maintain a proper restaurant.”
3. “My name is Mr. Meyer Rabin, and my brother lives across the street from the Ranch House Inn, and we have enjoyed the entertainment over there many times. We’ve had parties of our own at our own home and have never been disturbed by anything there. We certainly would like to have it rebuilt because it certainly isn’t good for the area the way, in the condition that it’s in now. The reason he isn’t here is that he’s out of town on vacation now, arid I thought that I would come down and say these things that I’m sure that he would say. We’ve never been disturbed by any noises over there. It’s a night club like all night clubs that we have today, and I think it would be a good thing to continue, and we certainly need the, these lodge accommodations somewhere in that area for guests and people that come into town to visit.”