(dissenting) :
The Court in this case affirms the granting of a Writ of Mandate to compel issuance of a building permit. A Writ of Mandate will issue against a county or incorporated city on the refusal to issue a discretionary license only wheh such refusal is arbitrary and unreasonable.1 The decision to deny Ready-To-Pour, Inc. a building permit in this case was not arbitrary and unreasonable, thus the Writ of Mandate was improperly granted.
There is a strong presumption in Idaho favoring the validity of zoning board actions.2 A presumption of law is a rule requiring a court to draw a particular inference from a fact unless and until the truth of such inference is disproved.3 The burden of proof is on the party attacking the zoning ordinance, at the district court level, to show that the ordinance, as applied to the property in question, was confiscatory, arbitrary, unreasonable and void.4 The presumption favoring the validity of the zoning board action here has not been overcome, and Ready-To-Pour, Inc. has not met its burden of proof by showing that the ordinance, as applied, was confiscatory, arbitrary, unreasonable and void.
The majority opinion applies the rule that the applicant’s rights to a building permit are to be measured under the law in effect at the time cJf the original permit *516application, here Ordinance 85. Since Ordinance 85 was in effect at the time of the application, this case can be distinguished from Ben Lomond, Inc. v. City of Idaho Falls.5 In Ben Lomond the court held an applicant was entitled to a building permit upon compliance with the zoning ordinance existing at the time of the application. There was no zoning ordinance existing for the particular property in that case. Here there was a zoning ordinance in existence, and the City Council held that it was not complied with by Ready-To-Pour, Inc.
This Court stated as follows regarding zoning ordinances in Idaho Falls v. Grimmett6: ,
“The validity of zoning ordinances, passed in conformity with legislative authority, is now generally recognized as a proper and legitimate exercise of the police power.
“It must be conceded that, where a given statute admittedly presents a proper field for the exercise of the police power, the extent of its invocation and application is a matter which lies very largely in legislative discretion.
“Every presumption is to be indulged in favor of the exercise of that discretion, unless arbitrary action is clearly disclosed.
“It should be remembered that the adoption of zoning ordinances, and the regulation of the construction of buildings in various zones or districts, is the exercise of the police power of the municipality and is purely governmental.” (citations omitted.)7
In the more recent case of State v. Clark8, the Court stated:
“The subject matter of the ordinance being within the police power, and properly belonging to the legislative department of government, the courts will not interfere with the discretion, nor inquire into the motive or wisdom of the legislature.”9
In view of the above principles, if the validity of the application of an ordinance to the property in question can be said to be fairly debatable, its validity must be upheld.10 The extensive testimony taken at the district court hearing is evidence of the debatable nature of the testimony involved in this case. The majority opinion states that:
“The evidence was hotly contested concerning the relative amount of noise which would be produced by applicant’s proposed plant and at what distance such noise would be offensive, if at all,, beyond the limits of the industrial zone.”
The “evidence” the majority cites is that given at the district court level. This again emphasizes the debatable nature of the testimony given.
The district court should not have reheard the evidence the City Council considered unless there was a showing by Ready-To-Pour, Inc. that the Council acted in an arbitrary manner. An arbitrary action has been defined as “a refusal to consider the evidence introduced or to make essential findings without supporting evidence.”11 In the present case the City Council did consider the evidence and make essential findings. The Minutes of the Special Meeting of the Ketchum City Council held on July 24, 1969, show such consideration, stating in part:
“The City Council of the City of Ketchum, Idaho having had before it the application of Ready to Pour Concrete Co., Inc. for a building permit to construct a concrete mixing plant on certain property within the City of Ketchum, Idaho *517and the Council having previous to the meeting viewed the present operation of Ready to Pour Concrete Co., Inc. located in Sun Valley, Idaho, and having considered the terms and conditions of Ordinance No. 85, the Ketchum Zoning Ordinance, and having further considered the proposals and views of Ready to Pour Concrete Co., Inc. and the protestants to the issuance of such building permit, the Council therefor finds:
“1. That the proposed operation will cause substantial amounts of offensive noise, dust, increased traffic and other objectionable influences beyond the boundaries of the Industrial District.
“2. That the proposed operation would be especially obnoxious, offensive and detrimental to the public health and welfare of the residents of the City of Ketchum.
“3. That the City of Ketchum is essentially a resort and tourist service area as well as a primary residential area, because of which the proposed operation of Ready to Pour Concrete Co., Inc. would not be in harmony with the essential functions of the City, nor in keeping with the spirit, purpose and intent of Ordinance No. 85 of the City of Ketchum.”
An examination of the above reasons given by the City Council at the July 24, 1969 meeting indicates that there was no abuse of discretion in denying the building permit sought by Ready-To-Pour, Inc. Of the three reasons for denying the permit, two were directly connected to Ordinance 85. The first reason was:
“1. That the proposed operation will cause substantial amounts of offensive noise, dust, increased traffic ánd other objectionable influences beyond the boundaries of the Industrial District.”
This is the same language found in § 10.-1(1) of Ordinance 85, which stated:
“10.1 USES PERMITTED
“(1) Any industrial or manufacturing operation which does not create danger to the safety of employees and residents in surrounding areas and does not cause substantial amounts of offensive noise, vibration, smoke, odors, heat, glare, or other objectionable influences to disseminate beyond the boundaries of the I District.”
The finding by the City Council was a proper exercise of its legislative and quasi-judicial discretion. Ready-To-Pour, Inc. failed to show that this application of the ordinance was confiscatory, arbitrary, unreasonable or capricious.
The second reason for denying the permit given by the City can be sustained under §§ 10.1(3) and 11.1 of Ordinance 85. This second reason stated:
“2. That the proposed would be especially obnoxious, offensive and detrimental to the public health and welfare of the residents of the City of Ketchum.”
Ordinance 85, §§ 10.1(3) and 11.1 read in pertinent part:
“10.1 USES PERMITTED
(3) The following uses shall be subject to the provisions of Section XI of this ordinance: automobile wrecking yards; junk yards; dumping or reduction operations; rendering plants; or any other use which might be especially obnoxious, offensive, hazardous or detrimental to the public health and welfare of the residents of the City of Ketchum.”
“USES PERMITTED BY SPECIAL REVIEW
“11.1 USES PERMITTED
“Due to their particular features, which may be injurious to the health, safety or welfare of inhabitants located nearby, depending on environmental measures taken in each instance, the following uses shall be allowed in the designated zones only upon favorable recommendation of the Planning and Zoning Commission (with additional controls if necessary) and approval by the City Council:
*518“(3) Reduction operations, dumping areas and rendering plants in the I District, provided:
“(a) a site plan of the proposed use is furnished; and
“(b) a written statement is provided explaining the methods which will be used to control adverse effects of the operation. . . .”
Reading the second reason for denying the petition in connection with the above sections of Ordinance 85 shows again that the City Council did not abuse its judicial discretion.
The second reason for denying the permit should be read in light of the admonition of this Court in Idaho Falls v. Grimmett,12 that:
“Every presumption is to be indulged in favor of the exercise of that discretion, unless arbitrary action is disclosed.”
The denial of the permit was thus properly accomplished pursuant to the ordinance in effect at the time of the application. Because of this it is unnecessary to enter into a discussion of nuisance per se or nuisance per accidens. Even if the proposed plant would neither be a nuisance per se or a nuisance per accidens, it could still be subject to regulation by a zoning ordinance.13
The majority opinion allows the district court to act in a review capacity by allowing retrial of facts which were heard by and were within the discretion of the City Council to determine their relevancy to legislation. Such procedure does not properly ascertain if the City Council acted arbitrarily or capriciously. The Writ of Mandate should have been denied in absence of a showing that the City Council’s refusal to issue the building permit was arbitrary and unreasonable. I must, therefore, respectfully dissent.
DONALDSON, C. J., concurs in the dissent.. See Barth v. DeCoursey, 69 Idaho 469, 207 P.2d 1165 (1949) ; Darby v. Pence, 17 Idaho 697, 107 P. 484 (1910).
. Cole-Collister Fire Protection Dist. v. City of Boise, 93 Idaho 558, 468 P.2d 290 (1970) ; Boise City v. Better Homes, Inc., 72 Idaho 441, 447, 243 P.2d 303 (1952).
. Cole-Collister Fire Protection Dist. v. City of Boise, supra, note 2, 93 Idaho at 563; Black’s Law Dictionary (4th ed. 1968).
. Cole-Collister Fire Protection Dist. v. City of Boise, supra, note 2; Boise City v. Better Homes, Inc., supra, note 2.
. 92 Idaho 595, 448 P.2d 209 (1968).
. 63 Idaho 90, 117 P.2d 461 (1941).
. Id., 63 Idaho at 96, 117 P.2d at 463; see also Rowe v. Pocatello, 70 Idaho 343, 350, 218 P.2d 695 (1950).
. 88 Idaho 365, 399 P.2d 955 (1965).
. Id., 88 Idaho at 375, 399 P.2d at 961.
. See Cole-Collister Fire Protection Dist. v. City of Boise, supra, note 2, 93 Idaho at 564, 468 P.2d 290.
. Inland Motor Freight v. United States, 36 F.Supp. 885, 887 (D. Idaho 1941).
. Supra, note 6.
. See C.S. Rhyne, Municipal Law, § 32-36, p. 926 (1957).