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Show MONDAY. NOVEMBER 11, 1974 PAGE THIRTEEN INTERMOUNT AIN COMMERCIAL RECORD Utah of In The Supreme Court of The State something, something or violate something. The presumption in this case is in favor of the applicant's right, with incidental, but serious constitutional and other problems posed by the facts here as to due process, impairment of the obligation of contracts, scope of sovereign authority, etc. There is considerable urgence in this, some of which appears to be gratuitous, and urged for the first time on appeal, suggesting an omnipotence in County government to disturb or destroy property rights, which of seems to be the nub the case. v. Darrel do pay Contracts Funding And Mortgage Exchange, a Utah corporation, Plaintiff and Respondent, pre-existi- ng D. Maynes, Director, Lake Salt County Building And Zoning Enforcement Department, Defendant and Appellant. We think the only way the County could have justified a "reversal of the trial court's decision, Contracts Funding And Mortgage Exchange, a Utah corporation, Plaintiff and Respondent, would have been to show that "Contracts, " after having been denied the opportunity (which was not granted here), had not satisfied some kind of procedural, governmental or other regulation as a condition precedent to the application's grant, - which the County here completely has failed No. 13608 v. Board Of Salt Lake County Commissioners, FILED in its task to establish. November 4, 1974 The simple fact is, that a property owner, having done everything necesunder sary existing laws, cannot be expected to be circumscribed by ex post facto modus operandi leges, such as zoning ordinances presuming to upside-dow- n the hour glass. Allan E. Mecham, Clerk Defendant and Appellant. ' HENRIOD, Justice: Appeal by the County from a judgment saying plaintiff should be allowed to develop a mobile home project on vacant, unzoned property. Affirmed. Taking substantially the defendants' statement of the facts, in brief they were as follows: Plaintiff had agreed, on October 17, 1972, to purchase a piece of unzoned property in the County through the Probate Court. On December 4, de1972, the County Commissioners had a defectively noticed public hearing to termine why all of the unzoned County property categorically should not be zoned - Plaintiff appeared and requested no zoning at that time. The request was granted. Then plaintiff asked for a conditional use permit, directed to the County's Planning Commission, for construction of the mobile homes. On March 3, 1973, the latter considered the request, and conditionally approved the application upon its staff checking the matter and reporting back, which it did on March 27, 1973, about three weeks later, so that residents of the area could appear and express their opinions. - ,- At the March 27th meeting of the Planning Board, plaintiff's application of such denial was notice Written was denied. a for building permit verbally to given a week or so later, whence plaintiff appealed directly the Commission, thus anchoring the matter. Defendants' thrust here seems to be that because there was some kind of meeting of residents of the area, the denial of plaintiff's application was based on "new evidence produced by the local residents who opposed the construction . . . " There is nothing in the record about this or about who and how many did not oppose it, and such a conclusion as is stated in defendants' brief is a non sequitur based on an unidentified number pf unnamed, undesignated persons to whom the Planning Commission (that verbally had approved the application) nor the County Commission, without findings of fact of any kind, and no apparent must be subservient or obeisant, when a opportunity for citizen's property rights effectively are being destroyed. cross-examinati- The weakness of defendants' case is 1) its failure to justify what it did by anything save hearsay and opinion evidence, and pressure of some interested persons, out of which arose 2) an ordinance which, if sustained as to the property subject of this litigation, would destroy property rights and emasculate and ' eliminate laws and regulations extant at the time application for a permit was made, - by retrospection, - and effective by such ex post facto determination, as of a date nearly a year before. If this be permissible there is no reason why the ordinance could not reach back five years, a decade or earlier. Furthermore, 3) Defendants' claim that at the time of plaintiff's application, a conditional use would have to be shown, - there is nothing in the record to show that plaintiff was asked for maps, data, evidence or anything else, - since it was never given any conditions with which it must have and may have complied, - only nothing but an On May 27, 1973, the Probate Court confirmed plaintiff's offer and the inchoate purchase was concluded. On August 7, 1973, plaintiff again asked for a building permit, and on August 9. 1973, two days later, the Commission not only denied the appeal, but passed a zoning ordinance excluding plaintiff's pro- posal to construct the homes, indirectly interdicting any go-ahe- arbitrary turn-dow- n. WE CONCUR: E. R. Callister, permission. ad on, Therefore, as we see it, the plaintiff had a; right to build what it said it wanted to build, if it had filed an application for a permit to do so. Jr. , Chief Justice R. L. Tuckett, Justice There, is nothing in this record to indicate that the County or anyone else denied the application for a permit because of failure to file something, Ellett, Justice, and Crockett, Justice, concur in the result. American Aggregate Corporation, a corporation, Plaintiff and Appellant, The trial court found that Brimhall was a joint venturer with plaintiff and as such was authorized to act as agent and to make the contract to sell the rock at the price of $20. 50 per ton. It further found that plaintiff, by reason of the action of its officers, ratified and accepted the agreement as made. 1 v. Otto Buehner 8c Company, a corporation, Paul Buehner, No, 13478 Defendants and Respondents, FILED v. October 31, 1974 D. W. Brimhall, Additional Defendant on Counter- claim and Cross -- Complainant. Allan E. Mecham, Clerk ELLETT, Justice: The plaintiff, hereinafter referred to as American, appeals from a trial to the court sitting judgment dismissing its complaint after a five-da- y without a jury. There is no dispute in regard to the following matters: Rigby had filed on land under the mining laws of the United States and was doing assessment work thereon. 1. 2. Rigby leased the land to American and was to receive $1. 50 per ton royalty for all quartz aggregate mined and sold and American was to do the assessment work. 3. The mineral on the claim was a unique white quartzite used in making concrete slabs for use in buildings. 4. American contracted with Brimhall to mine and crush the quartzite and to pay $10 per ton out of cash received when and as sales were made. .Buehner Company knew of the above arrangements and had bought aggregate from American on prior occasions. 5. Buehner Company had a contract to furnish slabs in connection with a large building being erected. 6. 7. The architect had specified the unique quartzite to be used by Buehner. 8. Buehner tried to purchase from American but would not agree to pay $29. 50 per ton. Thereafter Buehner went to Brimhall and entered into an agreement with him to buy the aggregate at $20. 50 per ton f. o. b. Buehner's plant. 9. i 1 Our duty is to affirm the trial court if there is competent evidence in the record to sustain the finding. 1 1. DeVas v. Noble, 13 Utah 2d 133, 369 P. 2d 290 (1962); Charlton v. Hackett, 11 Utah 2d 389, 360 P. 2d 176 (1961). The appellant vigorously disputed the evidence upon which the court rebut we cannot say there was no credible evidence- to nupporf the finding. lied, - Mr. Brimhall was called as a witness by ihe plaintiff and lestified that he operated under an unsigned written agreement drawn up by counsel for American whereby he was to mine and crush the quartzite and was to be paid $10 per ton therefor, that American was to haul the material soJd and was to be paid $8 per ton for hauling, and that $1. 50 per ton was to be paid as royalty to Rigby and the profit, if any, made from a sale was to be divided between American and Brimhall. The defendant Paul Buehner was called ;if. ;i witness r.d testified about a phone conversation with the president of Anru'iicm as follows: Q Now, would you occurred and where? tell the Court when that . cmivcx tialioi. A It took place on the phone prior to the time to the time we issued the purchase order. -- - just prior Q Now, you tell me what was Raid by you and what was said by Mr; Reimann? A I told Mr. Don Reimann that we had a purchase order with Mr. Chidester and that if wc were going to change it we had to ' know immediately because Mr. Chidester had to get the aggregate out, and if he was -- - if he wrru poing to negotiate with him on the price of 20. 50 that I had to know now. He said he didn't want to do it, and I said can I work it out with Mr. Brimhall and he said yes. You go ahead. Mr. Buehner testified that he had another telephone conversation with Don Reimann as follows : Q Now, will you tell the Court in your own words what was said by you and what was said by Mr. Reimann -- - Don Reimann? A He called and snid wc would accept the price on the aggregate which has been discussed, which was 20. 50. And he also said that he would like to have us help him with the use of our models and molds on the oxen at the reduced price. Q Now, say what was said in that conversation? |