(dissenting).
Although this road has been too-recently traveled before in Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 596, 605, 448 P.2d 209, 219 (1968) (dissenting opinion), I once again must dissent from an opinion which can only serve to enervate Idaho cities’ plans to control their futures. Many of the relevant arguments and authorities have been set out in the Ben Lomond case, supra, and I will not reiterate that material here. There are only a few points which are especially worth noting about the majority opinion and its consequences.
The first is that this Court, in declaring this otherwise valid zoning classification “arbitrary and confiscatory,” has more ruled on the desirability of a policy of planning than on the constitutionality of an or*566dinance. In so ruling, the Court has, in effect, adopted the role of a legislature and ignored two guiding principles of decision which control the power of courts to declare legislative acts unconstitutional.
“One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies, not to the courts, but to the ballot and to the processes of democratic government.” United States v. Butler, 297 U.S. 1, 78-79, 56 S.Ct. 312, 325, 80 L.Ed. 477 (1935) (Harlan Fiske Stone, J., dissenting).
The same sentiment was as eloquently, if more concisely, stated by Justice Holmes,
“it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Missouri, Kansas & Texas R. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971 (1904).
The majority opinion gives lip-service to the salutory principle that the actions of legislative bodies should be accorded great respect by courts in its discussion of the “presumption” that the zoning ordinance is valid. The reasoning, however, on this point is incorrect. The force of the “presumption” is that the original decision made by the City of Boise to zone this area “L-O” was correct. The action in the district court is essentially an appeal from this original decision of the City to zone in accordance with its master plan. If respondent wished to overturn the City’s decision in a court, it should have built and transmitted a record at the level where the decision was made. As long as it is the rationality of the zoning commission decision which respondent attacks, it should present the factual basis upon which that decision was made, and then it could produce supplementary evidence to rebut that record.
Instead of following that procedure,, wisely adopted by the legislature for review of the actions of state agencies, I.C.. §§ 67-5215, 67-5216 [S.L.1965, ch. 273],, the majority opinion suggests that the district court should become a supra-zoning-board. The effect of this and other decisions will be to compel the cities of Idaho, to bring all of the facts and knowledge-which go into every zoning decision into-courts to justify those decisions to judges. Each property owner who sees an opportunity to profit at the expense of his neighbors’ and his community’s property and aesthetic values may now be expected to, challenge his zoning classification. Thus, the decision to zone an area a certain way will have to be made, not once by the organ of government chosen for the job under I.C. § 50-1201, but over-and-again by the courts.
Even if I were convinced that the City could be forced to support its decision without a record, I find little in what respondent has offered which would cause me to shift such a burden to appellant in this action. There appear to be two circumstances upon which respondent and the majority rely in arguing that the zoning ordinance must fail. The first is that there are other non-conforming property uses in the vicinity, and the second is that the property has a special, higher value if it is spot-zoned “C-2.” Neither of these two facts, alone or in combination, is enough to support an arbitrary rezoning by a court.
The question raised by the existence of the other non-conforming uses in the vicinity has two answers. The first is that the property in question lies very close to the City boundary, and some of the general commercial property which lies near that of respondent is outside of the City’s jurisdiction and thus not subject to the zoning ordinance. To say that the City cannot zone an area one way if it cannot reach all *567the surrounding property, within or without the City limits, would be to hamstring hopelessly the power of a community comprehensively to regulate land-use within its borders. It would be like saying that Idaho has to allow gambling on all property contiguous to Nevada. To the extent that the majority opinion relies on the existence of unzoned commercial property outside the Boise city limits, it commits just such a folly.
The remaining non-conforming uses appear all to predate the zoning of the area “L-O.” There will nearly always be such uses whenever a new urban plan, such as Boise’s comprehensive plan, is put into effect. It is seldom possible to plan a city ■starting from the beginning; the planners must commence their work even though less than desirable “strip” commercial developments and other aberrant land uses have begun. Ultimately the non-conforming uses will cease to exist, and, unless a court has intervened in the interim, the area will take on the character assigned to it in the ■city’s plan. Unless this is allowed to happen, a race may be expected prior to any annexation or other alteration in an area’s zoning whereby land speculators will seek to avoid the law by beating the zoning commission to the punch. See Ben Lomond, Inc. v. City of Idaho Falls, supra, 92 Idaho at 606-610, 448 P.2d at 220-224 (dissenting ■opinion).
A case decided in New Jersey only last July, Forte v. Borough of Tenafly, 106 N.J.Super. 346, 255 A.2d 804 (1969), is most instructive on this point. Tenafly chose, .after years of commercial development on its fringes, to preclude all future retail ■development from the outlying portions of the city and restrict it to the central business district only. This was done as a part of a comprehensive land-use plan designed to stanch the rapidly progressing putrefaction of the core of the city. The New Jersey Court recognized that even ■though the respondent property owners in that case had lots in the midst of a retail business district and that the respondents could not obtain land in the central business district for the supermarket which they had planned, the city’s right to determine its own destiny was the determinative consideration. Tenafly’s ordinance, as applied to the respondents in that case, was upheld as not unreasonable or confiscatory. That case, premised on a respect for a city’s power and the realities of urban planning, indicates the correct path for this Court to follow.
The other factual foundation upon which the majority relies in its opinion, the special value of the property for filling station purposes, is equally unpersuasive. For one thing the evidence which respondent offered to support this contention is, in its best light, insubstantial. For another, such a fact is irrelevant.
A brief hypothetical may illustrate 'the weakness of this second foundation of the majority’s decision. We might suppose that, instead of a filling station, respondent sought to have the property used as a stoclcj-ard and rendering plant. In order to support its position in the district court, respondent would produce much testimony by marginally qualified or qualified but unprepared “experts” to the effect that the property was peculiarly well situated to be a stockyard and rendering plant. As such, they would say, it would command a price of $40,000 while if it were restricted to uses for which it was zoned, it was only worth $10,000. Under the special value rationale of the majority the city would have no choice but to grant a variance in the zoning and allow a stockyard and rendering plant. Such would be the case even though the obvious planning purpose of zoning the area “L-O” in the first place could not but be frustrated by so “valuable” a use. Nor would it matter that the property values of the area landowners would be reduced from what they had been under the properly enacted zoning ordinance. Least of all would it matter that the social and aesthetic values sought to be obtained by the city through its comprehensive plan would be irredeemably lost.
*568But, it may be argued, a filling station is not a rendering plant. That is true, but a filling station may be only slightly less disruptive to a quiet neighborhood. A filling station is serviced by large, noisy tank-trucks. It is often open at night long after most businesses are closed. It is necessarily accompanied by exhaust fumes, odors from petroleum products, greasy dirt, and penetrating headlight beams. It is surrounded by loud engine, horn and warning bell noises. While a filling station may not, itself, generate much increased traffic, the ingress and egress therefrom provides a brake and tire-squealing, horn-honking cacophony as well as an increased risk of automobile accidents. The introduction of a gasoline service station into what is meant to be an area of quiet uses will most definitely damage the proposed character of the neighborhood.
The respondent’s realization of a special value from the use of its property as a filling station will, therefore, occur at the expense of the City’s plan for the neighborhood and of the property values of neighboring landowners which were predicated on the maintenance of the City’s zoning scheme. The respondent, then, seeks to use its land, in a manner found to be unsuitable by the unit of government responsible, in a way which will injure the land of another or its value. This is nothing more or less than a nuisance. See Morgan v. High Penn Oil Co., 238 N.C. 185, 77 S.E.2d 682 (1953) ; Carney v. Penn Oil Co., 291 Pa. 371, 140 A. 133 (1928); cf. City of Tuscaloosa v. Standard Oil Co., 221 Ala. 670, 130 So. 186 (1930) ; National Refining Co. v. Batte, 135 Miss. 819, 100 So. 388, 35 A.LR. 91 (1924). But see White v. City of Twin Falls, 81 Idaho 176, 338 P.2d 778 (1959).
This is a taking of the value and enjoyment of respondent’s neighbors’ property. For that taking there should he compensation as a matter of elemental justice. This is where the opinion of the majority errs most grievously. In their preoccupation with the value of a gasoline station to the respondent they fail to appreciate larger concepts of value to an entire neighborhood and to the community which our ancient law of nuisance and our emerging law of zoning are designed to protect. They fail to understand that the appreciation of value which they are allowing Cole-Collister Fire Protection District to realize has been authoritatively determined to depreciate all other property affected. Under the majority’s special value rationale, respondent is being presented a windfall at the expense of its neighbors and at the expense of the City’s comprehensive plan. There is nothing in the constitutions of Idaho or the United States which would warrant, let alone compel, such a result.
The decision in this action, by requiring that the City defend its zoning decision in a trial de novo, gives too little respect to the competency of the City to control land use within its boundaries. It also works a manifest injustice by allowing respondent to realize a profit at the expense of neighboring landowners. I must, therefore, respectfully dissent.