1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 39441

STATE OF IDAHO ,
Plaintiff

- Respondent

- Appellant on Appeal,

v. JOHN HUNTINGTON WILKS,

Defendant

- Appellant

- Respondent on Appeal. ) ) ) ) ) ) ) ) ) ) ) ) 2013 Unpublished Opinion No. 568

Filed: July 8, 2013
Stephen W. Kenyon, Clerk

T HIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Third Judicial District, State of Idaho, Payette County. Hon. Thomas Jo seph Ryan , District Judge. Hon. A. Lynne Krogh, Magistrate.
District court appellate decision setting aside judgment of conviction in magistrate division, reversed ; judgment of conviction for maintaining a nuisance, affirmed

. Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for appellant.
Charles D. Coulter, Boise, for respon d e nt.

________________________________________________ WALTERS, Judge Pro Tem This is an appeal by the State from an intermedia te appellate decision by the district court
that set aside a judgment of conviction entered in the magistrate division for maintaining a nuisance in violation of a city code. We reverse the district court’s decision and affirm the judgment of conviction.
I.
FACTS AND PROCEDURE John Huntington Wilks was charged with violation of an ordinance of the City of
Fruitland that regulates nuisances. Specifically, the city prosecutor alleged that Wilks

“ knowingly and unlawfully allow[ed] a junk vehicle to remain on his property within the City [a] Public nuisance, which is in violation of Fruitland City Code 8

- 2B

- 1 , a misdemeanor .” Wilks2 was also charged with an additional violation for allowing weeds to grow above eight inches high on the same property. After a t rial before the court without a jury , a magistrate found Wilks guilty of the vehicle nuisance violation
, but not guilty of the charge relating to the growth of weeds. The magistrate rejected Wilks’ asserted defense that he had a constitutionally

- protected right to maintain inoperable motor vehicles on the property in question, which preceded the annexation of the property into the City and also preceded the adoption of the ordinance Wilks was charged with violating. On appeal to the district court, the di strict court set aside the judgment of conviction entered by the magistrate, concluding that Wilks’ use of the property is constitutionally protected and protected under Idaho law as a preexisting
, nonconforming use. The State has appealed from the distri ct court’s intermediate appellate decision.
II.
ANALYSIS On review of a decision of the district court, rendered in its appellate capacity, we review that decision directly and examine the magistrate record to determine whether there is substantial and competent evidence to support the magistrate’s findings of fact and whether the magistrate’s conclusions of law follow from those findings. Losser v. Bradstreet , 145 Idaho 670, 67 2, 183 P.3d 758, 760 (2008); State v. DeWitt , 145 Idaho 709, 711, 184 P.3d 215, 217 (Ct. App. 2008).
When a criminal action has been tried before a court sitting without a jury, appellate review of the sufficiency of the evidence is limited to ascertainin g whether there i s substantial evidence upon whi ch a court could have found that the prosecution met its burden of proving the essential elements of the crime beyond a reasonable doubt. State v. Bettwieser , 143 Idaho 582, 588, 149 P.3d 857, 863 (Ct. App. 2006); State v. Smith , 139 Idaho 295, 298 , 77 P.3d 984, 987 (Ct. App. 2003). We are precluded from substitutin g our judgment for that of the fact finder as to the credibility of witnesses, the weight of evidence, and the reasonable inferences to be drawn from
the evidence. State v. Vandenacre , 131 Idaho 507, 510, 960 P.2d 190, 193 (Ct. App. 1998); State
v. Hickman , 119 Idaho 366, 367, 806 P.2d 959, 960 (Ct. App. 1991). We conduct free review of questions of law presented. Martel v. Bulotti , 13 8 Idaho 45 1, 453, 65 P.3d 192, 194 (2003) ( citing Polk v. Larrabee , 135 Idaho 303, 308, 17 P.3d 247, 252 (2000) )

. The facts presented at trial and supporting the magistrate’s determination that Wilks was guilty of violating the junk vehicle nuisance ordinance were l argely undisputed. They show that
in 195 0 , Wilks’ parents purchased real property in Payette County , recording the deed in 1952

.3 The property was annexed into the City of Fruitland in 1967 and was zoned for single family residential use. In 1973, the Fr uitland City Council adopted the ordinance making it unlawful for any person to maintain a junk motor vehicle on residential property for a period of more than thirty days. 1 Three years later, the City adopted the ordinance making it unlawful to allow weeds to exceed eight inches in height on property within the city limits. In June 2010, the Fruitland City Police Chief received complaints about the growth of
weeds and the s torage of junk motor vehicles on the Wilk s es’ property. After officers visit ed the property and view ed its condi tion, Wilks was charged with maintaining junk motor vehicles on residential property and with allowing the growth of weeds in violation of the pertinent sections of the city ordinances regulating such matters. At trial, several neighboring residents testified
about the condition of the Wilk s es’ property, including the accumulation of more and more junk vehicles on the property over a period of s everal years. City officials testified that there had been junk vehicles on the property for several years and that despite being served with numerous notices informing him of the ordinance violations, Wilks never removed the junk vehicles from the proper ty. Wilks testified that the residential property was still owned by his parents, at least by his mother since his father had passed away in 2009 , and that he had no present interest in the property , but that he was the sole heir to his parents’ property b ecause his only sister had also recently passed away. He testified that both he and his mother presently live in Ontario, Oregon, and not on the Fruitland property. The domestic water service to the property has been shut off.
He testified that his fath er began collecting vehicles and storing them on the property in 1950.
O ccasionally
, his father would sell one of the vehicles, but some of them had been on the property for up to fifty years. Wilks further testified that he owned most of the vehicles on the

1 Fruitlan d City Code (FCC) § 8

- 2B

- 2 (B) provides
, “ I t shall be unlawful for any person to maintain a junk motor vehicle, vehicles, o r parts thereof on residential property or business property for a period of more than thirty (30) days.” There are exceptions to the prohibition against maintaining junk motor vehicles on residential property, including where the vehicle is “completely enclosed within a building in a lawful manner where it is not visible from the street or other public or private property” (FCC § 8

- 2B

- 3(A)); where the vehicle is stored or parked on private property in connection with a business of a licensed dismantler, vehicle dealer or junk dealer, or where the vehicle’s storage is necessary to the operation of a lawfully conducted business or commercial enterprise (FCC § 8

- 2B

- 3(B) ) ; and for regularly used recreational vehicles and for vehicles owned by active duty military personnel stationed outside the state (FCC § 8

- 2B

- 3(C) , ( D) ). It is undisputed that none of the se exceptions applied in Wilks’ case.4 property and that he had started storing vehicles on the property in 1962. He admitted that

n either he nor his father w as duly license d to be a collector or dismantler of vehicles or to operate a junkyard business on the property.
At the conclusion of the evidence, Wilks moved to dismiss the junk motor vehicle charge, arguing that the storage of junk vehicles on his parents’ property constituted a preexi s ting
, nonconforming use that is constitutionally protected

. The magistrate denied Wilks’ motion and found that Wilks was guilty of maintaining junk vehicles on residential property in violation of the city ordinance. 2 The court said: With respect to the argument about constitutionality, Mr. Wilks is not being prohibited from ow n ing junk vehicles. He is not prohibited from owning as

ma n y junk vehicles as he wants to own. The county and the city can adopt reasonable ordinances to promote the safety and welfare of the public, and that includes saying that if you’re going to have junk vehicles you ei ther have to keep them behind a fence or stored in an appropriate facility so the place doesn’t look like a junk yard that devalues other properties in the neighborhood. So the [ordinance] is not unconstitutional, and Mr. Wilks is in violation of it by hav ing junk vehicles that belong to him that are on the property that are not licensed, not registered, not operable
, and not behind a fence o r in a building.

T he magistrate entered a judgment of conviction, fined Wilks $300
, and sentenced Wilks

to serve thirty days in jail. The court set a review date for six weeks in the future and withheld imposition of the jail sentence pending the review date to give Wilks time to present proof that
each of his vehicles either wa s operating and registered, or stored in an outbuilding, or removed from the property, in which case the jail term would be suspended. On Wilks’ appeal to the district court, the district court held that Wilks’ use of the real property was the same use to which the property had been put before and after the adoption of the zoning ordinance by the City of Fruitland. Accordingly, the district court ruled that “ the current use of the Wilks’ property is a constitutionally protected pre

- existing non

- conforming use
and a s such is protected under Ida ho law.” The State contend s that the district court erred in its
conclusion because Wilks lacked standing to assert a claim of a preexisting
, nonconforming use that is constitutionally protected (commonly referred to as a “ grandfather” right) inasmuch as Wilks was not the owner of the residential property where the junk motor vehicles were located.

2 The magistrate found Wilks not guilty of violating the city weed ordinance because there was no evidence that Wilks owned the real property or otherwise was responsible for

ma intaining the land.5 Although the State had raised the standing issue on the appeal to the district court, the district
court did not explicitly address that issue in its appellate decision, inferentially determining that Wilks did have standing to claim the grandfather right.
We conclud e that the State is correct in its assertion that Wilks’ storage of his inoperable
motor vehicles on his parents’ property is not protected as a pre existing
, nonconforming use because Wilks is not the owner of the real property. It is well recognized that a nonconforming use is a use of land which lawfully existed prior to the enactment of a zoning ordinance and
which is maintained after the effectiv e date of the ordinance even though not in compliance with
use restrictions. Kootenai Cnty. v. Harriman

- Sayler , 154 Idaho 13, 18, 293 P.3d 637, 642 (2012) ; Baxter v. City of Preston , 115 Idaho 60 7, 608

- 09, 768 P.2d 1340, 1341

- 4 2 (1989). Furthermore, i t is a property

- right protection based upon the state and federal due process
clauses. Harriman

- Sayler
, 154 Idaho at 18, 293 P.3d at 642; Baxter , 115 Idaho at 608

- 09, 768
P.2d at 1341

- 42; Boise City v. Blaser
, 98 Idaho 789, 572 P.2d 892 (1977); O’Connor v . City of
Moscow , 69 Idaho 37, 202 P.2d 401 (1949). Often referred to as a “ grandfather right,” a nonconforming use simply protects the owner from abrupt termination of what had been a lawful condition or activity on the property; t he protection does not extend be yond this purpose.
Harriman

- Sayler
, 154 Idaho at 18, 293 P.3d at 642; Baxter , 115 Idaho at 608

- 09, 768 P.2d at
1341

- 42. Given that grandfather rights are property rights , o bviously a claimant will be unable to establish a nonconforming use wher e the claimant has no proprietary interest in the land. See
Eric M. Larsson
, Cause of Action to Obtain Zoning Exemption Based Upon Nonconforming Use
, § 16 , in 36 C AUSES OF A CTION 583 ( 2d ed. 20 13 ) . The Court of Appeals of Michigan discussed this princip le in Gerrish T w

p. v. Esber , 506 N.W.2d 588 ( Mich. Ct. App. 1993) , where the township brought suit seeking the removal of two signs advertising the defendant s ’ grocery store , which violated a zoning ordinance passed after their placement. The signs were located on a piece of land owned by the state approximately a mile from the store. The defendants argued placement of the signs was a valid nonconforming use; however, the co urt pointed out that the defendants overlooked the fact that the signs were not on their property. Id . Noting that permitting the continuation of a nonconforming use is designed to avoid the imposition of hardship upon the owner of property, t he court re jected the defendant s ’ assertion of a valid

non conforming use because the defendant had no property right to be protected in this instance.6 Id

. Accord Young v. Planning Comm ’ n of C nty

. of Kaua ʽ i , 974 P.2d 40, 50 (Haw. 1999) (holding that because “ the zon ing law concept of ‘ non

- conforming use’ protects landowners who have vested rights to use their land in a fashion later prohibited by restrictive zoning regulations, ” the plaintiff, who had no proprietary interest in the land under which he was operating h is tour boat or any vested interest in use of the bodies of water, could not claim a valid nonconforming use); The Lamar Co.
, LLC v. City of Fremont , 771 N.W.2d 894, 903 ( Neb. 2009) (holding that because the right to maintain a legal nonconforming use “ run s with the land
, ” where claimant’s leasehold had been terminated on the land, the claimant no longer had ownership interests in the nonconforming use rights and did not have standing to challenge the relevant ordinance); Haher’s Sodus Point Bait Shop
, Inc. v. Wigle , 139 A.D.2d 950 , 950 (N.Y. App. Div. 1988) ( holding claimant had no right to use of land later prohibited by restrictive zoning regulations where it did not own the land u pon which the contested use existed )

. Although generally referring to the “ owner” of land on which the nonconforming use

runs, case law is clear that the benefit of a nonconforming use may inure to a subsequent
transferee who obtains a p roprietary interest in the land as a result of a transfer of title , such as by mortgage fore closure or inheritance

. See Budget Inn of Daphne
, Inc. v. City of Daphne , 789 So. 2d 154, 159 (Ala. 2000) (noting that the right to a non conforming use is one of the “ ‘bundle of rights’ which together constitute the attributes of ownership of the land ” ex tending to a new owner of the property ) (citing 4 R ATHKOPF ’ S T HE L AW OF Z ONING AND P LANNING , § 51.03 (1994)).
While Wilks may have had permission from his mother to store his motor vehicles on her property, this appears to have been an inchoate interest terminable at will by Mrs. Wilks and did

not create an enforceable p roprietary interest or attribute of ownership that Wilks could claim was attached to the property as a right devolving to him

. Wilks did not esta blish that he had any proprietary interest through ownership or by leasehold in the Fruitland property. He therefore lacked standing to assert a right to maintain a
use of his parents’ property not in conformity with the Fruitland City ordinances.7 III

. CONCLUSION The intermediate appellate decision of the district court is reversed and the judgme nt of
conviction entered in the magistrate division , for maintaining junk vehicles in violation of the Fruitland City ordinance
, is affirmed. Judge LANSING and Judge MELANSON CONCUR.