Harris v. Springville City

HALL, Chief Justice:

Afton Johnson appeals the trial court’s judgment that the ice manufacturing business she was conducting constituted a change of use from a prior preexisting nonconforming use under municipal zoning ordinances. The court found that the change of use constituted a violation of Springville City ordinances and enjoined appellant from using the property for manufacturing and selling block and crushed ice. We affirm.

Afton Johnson operates an ice manufacturing business in Springville, Utah, known as Brookside Ice Company. The business is located in a neighborhood zoned exclusively for residential purposes. Johnson’s predecessor manufactured burial vaults and septic tanks. This prior use was a lawful preexisting nonconforming use.1 Prior to purchasing the property, Johnson was aware of the nonconforming character *189of the proposed business. She approached the city council to determine if the ice manufacturing business would be allowed. The council determined that the ice business was a continuation of the same kind of business as manufacturing burial vaults and septic tanks and issued a business license to Johnson in October 1979. Thereafter a building permit was issued allowing construction of a loading dock and storage space in excess of 400 square feet. Johnson also installed large refrigeration units. She used three large diesel trucks and a delivery truck for the sale and delivery of the manufactured ice. In addition to normal business hours, the business often operated at night, on Sundays, and on holidays.

In June 1980, plaintiffs asked the city council to enjoin the operation of the business. The city denied the request. Plaintiffs filed this action in October 1981, alleging that the business constituted a nuisance and was a change in use in violation of city ordinances. The trial judge found that the business did not constitute a nuisance. However, rejecting Johnson’s contention that a burial vault and septic tank manufacturing operation was synonymous with an ice manufacturing facility, the judge concluded that the use of the property had been changed and that any change violated Springville City ordinances. The trial judge thereupon enjoined Johnson from using the property for the manufacture or sale of ice. On appeal, Johnson seeks to have the injunction dissolved.

In Systems Concepts, Inc. v. Dixon, Utah, 669 P.2d 421, 425 (1983), this Court set forth the standard to be followed when reviewing injunctions:

The granting or refusing of injunction rests to some extent within the sound discretion of the trial court, and its judgment ... will not be disturbed on appeal unless it can be said the court abused its discretion, or that the judgment rendered is clearly against the weight of the evidence.

(Citations omitted.)

In support of her contention that the injunction should be overturned, Johnson urges that (1) a balance of equities requires that she be able to continue the business, and (2) the determination of the city council that the uses were of the same type should be upheld where there was no formal finding that the council’s action was arbitrary and capricious. In effect, appellant is suggesting that actions violating the plain language of a zoning ordinance should be condoned. This result is unacceptable.

This Court, in Thurston v. Cache County, Utah, 626 P.2d 440, 444-45 (1981), said: “County zoning authorities are bound by the terms and standards of the applicable zoning ordinance, and are not at liberty either to grant or deny conditional use permits in derogation of legislative standards.” (Citations omitted.)

The material evidence adduced in this case indicated that the city authorities disregarded the zoning ordinances and acted in derogation thereof. In light of that evidence, the trial judge did not abuse his discretion in granting the injunction.

Johnson’s last point on appeal is that the plaintiffs did not allege or prove damages. Appellant did not raise this point during trial or in her motion for a new trial. This Court will not consider an issue raised for the first time on appeal. Barson v. E.R. Squibb & Sons, Utah, 682 P.2d 832 (1984). In any event, the judgment in this case was bottomed on a violation of a zoning ordinance, not on any pleading or proof of damages. The non-conformance with zoning ordinances of the contested use is dispositive of this case irrespective of any question of whether anyone pleaded damage, was damaged or proved damages.

The judgment is affirmed. Costs on appeal to respondents.

DURHAM and ZIMMERMAN, JJ., concur.

. Authorized by § 11-3-201, Springville City Municipal Ordinances. Section 11-3-206 pro-videSjthat "[a] nonconforming use of a building or lot shall not be changed to any other nonconforming use."