State v. Joyner

Justice Lake

dissenting.

When the zoning ordinance was adopted the appellant’s material storage yard was already in operation. Thus, the appellant could not have been compelled to close his business immediately without compensating him for the taking. The city does not contend otherwise. What it contends is that it may reach the same result by dragging the process out over a period three years because, by permitting him to “amortize” his loss, it hurts him less. This argument is like the classic formula for reducing a dog’s pain by cutting off his tail an inch at a time.

The fallacy in the “amortization” argument of the majority opinion is thus stated by the Supreme Court of Missouri in Hoffman v. Kinealy, _ Mo. _, 389 S.W. 2d 745 :

“To our knowledge, no one has, as yet, been so brash as to contend that such a pre-existing lawful nonconforming use properly may be terminated immediately. In fact, the contrary is implicit in the amortization technique itself which would validate a taking presently unconstitutional by the simple expedient of postponing such taking for a *377 ‘reasonable’ time. All of this leads us to suggest, as did the three dissenting justices in Harbison v. City of Buffalo, [ 4 N.Y. 2d 533 ], 152 N.E. 2d at 49, that it would be a strange and novel doctrine indeed which would approve a municipality taking private property for public use without compensation if the property was not too valuable and the taking was not too soon, and prompts us to repeat the caveat of Mr. Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 , 43 S.Ct. 158, 160 , 67 L.Ed. 322 , 28 A.L.R. 1321 , that ‘ [w] e are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.’ ”

The appellant’s business is a lawful one. It is not contended that it is a nuisance per se or in its manner of operation, nor that it is a threat to the public health, safety or morals. At the time the ordinance was passed, the appellant had no long term lease, but he was in possession of the site with the consent of the owner of the fee and had the legal right to remain there, so long as the owner of the fee would permit, after the termination of his then existing lease. The city could not terminate his short term lease or the ensuring tenancy at will, nor, in my opinion, can it terminate his right to carry on his lawful, nonconforming use of the property without paying him for it.