Harris v. Springville City , 27 Utah Adv. Rep. 7 ( 1986 )

HOWE, Justice

(dissenting):

I dissent. I would remand this case to the district court to make a finding of fact as to whether the operation of the ice plant specially damaged the plaintiffs. Without a finding that the plaintiffs suffered special damages, the injunction entered by the court cannot be sustained. The law is that for a private person to maintain an action to enjoin violation of a zoning regulation (as distinguished from an action brought by the municipality) a person must allege and prove that the violation complained of results in special damages which are peculiar to him. The kind and amount of damage which will meet this requirement is damage over and above the public injury which may be caused by the violation of the zoning regulations. Padjen v. Shipley, Utah, 553 P.2d 938 (1976); 4 Anderson, American Law of Zoning, 2d ed., § 27.11, at 332.

The plaintiffs produced evidence that noise emanated from the refrigeration plant and from large trucks coming to and from the plant during both day and night hours. However, the defendant presented evidence that the noise was not perceptible to most people in the neighborhood, that the level of noise was not offensive even to those who could hear it, and that the plaintiffs were unreasonable in their sensitivity to any noise. The trial court made no finding at all as to whether the plaintiffs sustained any damage by the claimed noise and cast considerable doubt upon the claims of the plaintiff when it found that:

The nature and change of use of the subject property did not constitute an increase in the scope of the preexisting nonconforming use.

Moreover, the trial court also concluded that the ice manufacturing plant did not constitute a nuisance.

Proof of special damages was part of the plaintiffs’ cause of action. It is of no consequence whether the defendant objected to that iack of proof in the trial court. Delatare v. Delatore, Utah, 680 P.2d 27 (1984). The burden was on the plaintiffs to produce that evidence. Also, it is immaterial that the point was not raised on motion for new trial. Not since adoption of the Utah Rules of Civil Procedure in 1950 has a motion for a new trial been a prerequisite to taking an appeal. However, the defendant did move for a new trial on the ground of “insufficiency of the evidence to justify the judgment....” That ground covered lack of proof of special damages.

The injunction cannot be sustained without further findings as to the particular damage, if any, sustained by these plaintiffs. I would remand the case for that purpose.

STEWART, J., concurs in the dissenting opinion of HOWE, J.