McFADDEN, Justice.
Appellant, Ben Lomond, Inc., the plaintiff below, instituted this action initially for a writ of mandamus to compel the defendant City of Idaho Falls to issue a building permit for construction of a service station on its property. Appellant’s property, the subject of this action, is a tract 110' x 125' with an adjoining easement. The tract fronts on what is now 17th Street of the City of Idaho Falls, and is a part of a larger tract initially owned by appellant. By amended pleadings appellant later sought declaratory relief against the City to determine the constitutionality of certain city ordinances, and for injunctive relief to compel issuance of building permit for either a service station or a drive-in restaurant on its premises.
Very briefly, the facts disclosed by the record reflect that Norman Thompson, initially in February 1960 acquired an option on a ten acre tract of Bonneville County, adjacent to the city limits of Idaho Falls. (This tract was later annexed by the City on October 18, 1962 and is known as the [597]*597Roy H. Bennett Shopping Center.) Thompson requested that the county zoning commission and county commissioners approve a proposed shopping center plan for this property. This plan envisioned the use of this litigated property as a service station. The county approved the plan and zoned the tract as a residential shopping center, although it refused to issue a building permit for the station. Because of pressing financial problems created by refusal of his financial backer to continue with the plan, Thompson transferred his interest in the option to appellant, of which Thompson is the president. Appellant sold the northwest part of the tract to McCarthy Investment Company, and a service station was constructed thereon. Later appellant sold the remainder of the tract except for a parcel 150' x 660' at the east of the ten acre tract to another individual; still later, appellant sold to Mr. Woodward all of the 150' x 660' except for the one tract of 110' x 125' now owned by it and the subject of this litigation.
Appellant assisted Woodward in presentation to the county of a development plan envisioning construction of a grocery store on this property, which if constructed, would have made it possible for appellant to transfer its 110' x 125' tract to a bank interested in building thereon, provided the grocery store was constructed. As a condition to granting the grocery store building permit, the city and county insisted on dedication of a 30' "planting easement” along 17th Street on appellant’s property. This was granted and building permit issued to Woodward, but the permit was later canceled, and this proposal proceeded no further.
Between October 18, 1962, the date of annexation to the City, and August 22, 1963, when the city adopted Ordinance 1063, all of this property was unzoned insofar as the City was concerned. In February 1963 an option holder on this tract applied for a building permit for a drive-in restaúrant. After inaction on the application for 60 days, the option was allowed to lapse. Following this, an oil company entered into an agreement to purchase the property, and tried to obtain a building permit on the property for a service station. This company also was refused a permit and that agreement fell through. Still another oil company entered into another agreement to purchase, conditioned on obtaining a building permit to construct a service station, and this too was unsuccessful, the mayor stating that he would issue no permit because of commitments to residents across the street. This latter oil company then agreed to lease the property at a monthly rental with gallonage allowance, provided appellant could obtain a building permit for a service station.
On August 1, 1963, appellant sought a building permit and right to cross the planting easement. No official action was taken by the City. The building inspector, a city employee, testified that the City was holding up all building permits until a new zoning ordinance was enacted, and that he had told the “building official,” the witness’s superior, there was no basis for holding up the permits. The building inspector was then given specific instructions to issue no permits on this property until it was zoned.
No action was taken on appellant’s August 1, 1963 application for permit until the council meeting of August 22, 1963. At this meeting, the council, after suspending the rules (I.C. § 50-2004) passed Ordinance 1063, amending a prior zoning ordinance. The council then considered and approved, over appellant’s objections, a comprehensive plan for development of the shopping center, which plan left appellant’s land vacant. The council then denied appellant’s application for a building permit, without explanation, other than that it was done “upon advice of counsel.”
Appellant commenced this action in September 1963, seeking the issuance of a building permit for a service station. Prior to trial, appellant twice requested the City to amend the approved comprehensive plan to provide for construction of the service [598]*598station with additional exit for egress over the planting easement. These requests were denied, first under Ordinance 1063, and then later under Ordinance 1115, a new zoning ordinance adopted in August 1964, superseding Ordinance 1063.
In November 1963, appellant, in an attempt to settle the litigation, petitioned the City for a permit to build a drive-in restaurant on its land, without seeking any further access over the planting strip. This petition was denied.
Following trial of the case, the trial court held that under the provisions of the City’s zoning ordinance, a service station could be constructed on appellant’s land only if it is an integrated part of the adjoining shopping center, and since appellant’s proposal required an access over the planting easement to the street, it was not an integrated part of the shopping center. The court also held that, tmder the zoning ordinance, a “drive-in” restaurant was not a permitted use within the residential shopping center zone. The trial court found that appellant had. been afforded due process of law during all the hearings and that the ordinances are valid exercises of the police power and are not unconstitutional.
Both Ordinances 1063 and 1115 of the City of Idaho Falls are zoning ordinances, •the former amending a previous zoning ordinance, and the latter being a comprehensive ordinance. Both establish what is classified as a “Residential Shopping Center Zone,” for areas of not less than two nor more than twenty acres. Before any area can be zoned under that classification, a development plan is to be submitted to and approved by the .planning commission and city council. Permitted uses in the zone under Ordinance 1115 include a variety of retail establishments, office buildings, banks, “Restaurants, cafes, tearooms * * service stations,” and “other uses similar to the foregoing * * The record does not contain a copy of the Bonneville County zoning ordinance or regulations.
The property was annexed to the City on October 18, 1962. At that time the City had no applicable zoning ordinance, and only upon adoption of Ordinance 1063 on August 22, 1963, was there an applicable zoning ordinance enacted. In the meantime, numerous requests were made to the City by prospective lessees or purchasers from appellant for a building permit on the property, all of which were denied. Appellant’s land was unzoned insofar as the City was concerned when its application for building permit and curb cut of August 1, 1963 was presented. The majority rule that land formerly within the county’s jurisdiction, upon annexation comes into the city as unzoned land is succinctly stated in 101 C.J.S. Zoning § 134, p. 892:
“The zoning status of property annexed to a municipality depends on the provisions of the municipal ordinances, and in the absence of any provision covering the matter it has been held that unincorporated territory, on being annexed to a city, occupies the status of unzoned property regardless of its zoning status before annexation. County zoning regulations cease to apply to territory which has become part of a city.” (101 C.J.S. Zoning § 134, p. 892)
Louisville & Jefferson County Planning & Zoning Commission v. Fortner, 243 S.W. 2d 492 (Ky.App.1951); City of South San Francisco v. Berry, 120 Cal.App.2d 252, 260 P.2d 1045 (1953); Ellish v. Village of Suffern, 30 A.D.2d 554, 291 N.Y.S.2d 178 (1968) ; Farley v. DeMuth, 399 S.W.2d 469 (Ky.App.1965). Annot. 41 A.L.R.2d 1463. Contra, Highland Village Land Co. v. City of Jackson, 243 Miss. 34, . 137 So.2d 549 (1962).
Although none of the authority cited is binding on this court, it is our opinion that those cases holding that county zoning ordinances cease to apply to land annexed to a city state the better rule. Mississippi seems to be the only jurisdiction, following the contrary rule. The Mississippi Supreme Court in Highland Village Land Co. v. City of Jackson, 243 Miss. 34, 137 So.2d 549 (1962), held that the county-zoning ordinance must continue to govern. [599]*599the annexed land in order to protect the ■expectations of those persons who purchased their land before the annexation. We believe this is an insufficient reason to justify a continued application of the county law. The cases supporting the majority rule, on the other hand, rest upon the proposition that local subdivisions of government are separate sovereignties and that the ordinances of one political subdivision are of no effect in another. The Idaho Constitution specifically recognizes that such is the case:
“Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws.” (Idaho Const. Art. 12, § 2) (Emphasis added.)
Similarly, the Idaho decisions have consistently held that county ordinances are not effective within the boundaries of a municipality. In Hess Distributing Co. v. Bonneville County, 69 Idaho 505, 210 P.2d 798 (1949), this court, after quoting from Article 12, § 2 of the Idaho Constitution, stated:
“It appears to be conceded that in the exercise of the powers granted by such constitutional provision, a county cannot make police regulations effective within a municipality. * * * It also appears to be conceded that county regulations passed under such constitutional grant of power, cannot be enforced in a municipality in a field reserved to municipalities under the constitution, whether such field has been occupied by municipal ordinance or not. * * * Therefore, the fact that it does not appear that the regulation in question is in conflict with any existing ordinance of a municipality, is not important. The question is one of power and not one of conflict.” (at 510-511, at 801 of 210 P.2d)
To the same effect are State v. Robbins, 59 Idaho 279, 81 P.2d 1078 (1938) ; Justice Taylor’s special concurring opinion in Barth v. De Coursey, 69 Idaho 469, 207 P. 2d 1165 (1949) ; Ex Parte Roach, 104 Cal. 272, 37 P. 1044 (Cal.1894) and Ex Parte Knight, 55 CaLApp. 511, 203 P. 777 (Cal. App.1921). The language of Ex Parte Knight is particularly pertinent here:
“Since, therefore, a municipality is a distinct governmental entity, entirely independent of the county as such, and is, consequently, subject to no local legislation which is within the power of the governing board of the county to enact, it is wholly immaterial whether or not the municipal authorities exercise or put into operative effect all the powers conferred upon it by its charter and the Constitution. The county, in brief, has no legal right to legislate for a municipality located within its limits upon any subject which is within the scope of the powers granted to the municipality, and particularly upon any matters involving the police power of the state.” (at 779)
In the present case, then, the county zoning ordinance ceased to apply once the land in question was removed from the county’s jurisdiction by annexation. The land was from that time subject to the city’s jurisdiction, and the city having failed to take any action to provide a zoning classification for that land, the conclusion is inescapable that the land was unzoned. The city undoubtedly could have adopted the county ordinance or enacted its own zoning ordinance immediately upon annexation. In fact, I.C. § 50-1206, enacted after the present controversy had arisen (S.L. 1967, Ch. 429 § 214), specifically provides that a city shall begin zoning proceedings before land is formally annexed and shall zone such land immediately upon annexation. The fact that this statute was enacted in 1967 tends to indicate that the legislature considered land annexed to a city to be unzoned land prior to action being taken by the city. If in fact the county zoning ordinance continued to apply to the land, there would be no need for a statute such as I.C. § 50-1206. Given the [600]*600existence of this statute, the present difficulty should not arise again. In the present case, however, it is our opinion that under Article 12, § 2 of the Idaho Constitution the county zoning ordinance could no longer apply to the land in question once it was annexed to the City of Idaho Falls.
A service station, not being a nuisance per se, is a permissible use on unzoned land. Yokley, citing several cases, states that “A gasoline filling station is not a nuisance per se, and when properly constructed and operated is a lawful business. The right to operate a filling station is said to be a right inherent in property ownership in the absence of valid zoning regulations or restrictive covenants.” (2.Yokley, Zoning Law and Practice, § 229, Pocket Part p. 97 (3rd ed. 1965) ). White v. City of Twin Falls, 81 Idaho 176, 338 P.2d 778 (1959); Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 286 P. 353 (1930); Sikes v. Pierce, 212 Ga. 567, 94 S.E.2d 427 (1956); Town of Homecroft v. MacBeth, 238 Ind. 57, 148 N.E.2d 563 (1958). Under such circumstances the City had no authority to deny appellant’s requested permit after appellant had tendered the required fees and complied with all requirements in existence at the time of filing its application, as reflected by the record. It is our conclusion that the provisions of Ordinance 1063, enacted subsequent to filing of appellant’s application for permit to build and for access, was inapplicable to appellant’s application. (See I.C. § 50-1206, enacted S.L.1967, Ch. 429, § 214, pertaining to this problem in future annexations.)
The City contends, however, that it is the ordinance in existence at the time of ruling on the application for a permit which governs and that under Ordinances 1063 and 1115 appellant was not entitled to construct a service station which would utilize egress across the planting strip easement. Although some courts have held that a change in the law following an application for a building permit will be applied to the prior application (Burmore Co. v. Champion, 124 N.J.L. 548, 550, 12 A.2d 713 (1940); Baxley v. City of Frederick, 133 Okl. 84, 271 P. 257 (1928); McEachern v. Town of Highland Park, 124 Tex 36, 73 S.W.2d 487 (1934); Franchise Realty Interstate Corporation v. City of Detroit, 368 Mich. 276, 118 N.W.2d 258 (1962) ; Annotr 169 A.L.R. 584; 8 McQuillin Municipal Corporations, § 25.155, p. 492 (1965)), this rule-has not usually been applied when a city has unreasonably refused or delayed in passing upon an application until after the-new ordinance has become effective, or when the issuing officer has arbitrarily-failed to perform a ministerial duty to' issue a permit when the applicant was presently entitled to it. State ex rel. Humble Oil & Refining Co. v. Wahner, 25 Wis.2d. 1, 130 N.W.2d 304 (1964) ; Sgromolo v. City of Asbury Park, 134 N.J.L. 195, 46 A.2d 661 (1946); Phillips Petroleum Co. v. City of Park Ridge, 16 Ill.App.2d 555, 149 N.E.2d 344 (1958) ; State ex rel. Ogden v. City of Bellevue, 45 Wash.2d 492, 275 P.2d 899 (1954); Annot: 169 A.L.R. 584; 8 McQuillin, Municipal Corporations § 25.155, pp. 495-496 (1965). In the instant case,, the district court held that a delay by the-City of ten months in zoning the land in question was not unreasonable. Be that as; it may, it is our conclusion that appellant was entitled to a building permit for the-service station and the egress requested when it filed its application and the land being unzoned, issuance of the permit was-merely a ministerial duty of the city building official. In such situation, the later enactment of the ordinance cannot be held to divest appellant of this right.
No Idaho cases deal with this point. The weight of (and in our opinion the better reasoned) authority from other jurisdictions however, is to the effect that a public official must issue a building permit when the applicant has complied with all existing requirements. In State ex rel. Ogden v. City of Bellevue, 45 Wash.2d 492, 275 P.2d 899 (1954), the city attempted to-rezone the plaintiff’s land after the plaintiff had applied for a building permit to. [601]*601■construct a parking lot. In granting a writ of mandamus the court stated:
“A building or use permit must issue as a matter of right upon compliance with the ordinance * * *. An owner of property has a vested right to put it to a permissible use as provided for by prevailing zoning ordinances. The right accrues at the time an application for a building permit is made * * *. The moves and countermoves of the parties hereto by way of passing ordinance (sic) and bringing actions for injunctions, should and did avail the parties nothing. A zoning ordinance is not retroactive so as to affect rights that have already vested * * *_ The appellant’s right vested when he made application for his permit, and the respondents were required to issue the permit upon his compliance with the standards of the ordinance.” (at 901-902)
Similarly in Sgromolo v. City of Asbury Park, 134 N.J.L. 195, 46 A.2d 661 (1946) the plaintiff applied for a permit to build a restaurant on his unzoned land. His permit was denied and later a zoning ordinance was enacted prohibiting restaurants on the plaintiff’s land. In holding that the ordinance did not apply, the New Jersey Supreme Court stated:
“As we have seen, the zoning ordinance has no application. For here there was a full compliance with the building code before the zoning ordinance was adopted. It was therefore the peremptory duty of the building inspector to issue the permit in question.” (at 662)
To the same effect are Phillips Petroleum Co. v. City of Park Ridge, 16 Ill.App.2d 555, 149 N.E.2d 344 (1958); State ex rel. Romero v. Viator, 217 La. 239, 46 So.2d 256 (1950) ; State ex rel. Humble Oil & Refining Co. v. Wahner, 25 Wis.2d 1, 130 N.W.2d 304 (1964) ; City of Decatur v. Fountain, 214 Ga. 225, 104 S.E.2d 117 (1958). See also I Yokley, Zoning Law and Practice, § 9.7, p. 418 (3rd Ed. 1965).
Respondent relies on Felice v. City of Inglewood, 84 Cal.App.2d 263, 190 P.2d 317 (1948), as supporting the contrary view that the pendency of a change in a zoning ordinance may adversely affect rights to a building permit. Recognizing that there are cases supporting the respondent’s position, the better reasoned authority is otherwise; also, such authority is in accord with the general rule that legislation generally acts prospectively only. Winans v. Swisher, 68 Idaho 364, 195 P.2d 357 (1948); Wanke v. Ziebarth Const. Co., 69 Idaho 64, 202 P.2d 384 (1949) ; Application of Boyer, 73 Idaho 152, 248 P.2d 540 (1952) ; Ford v. City of Caldwell, 79 Idaho 499, 321 P.2d 589 (1958); Application of Forde L. Johnson Oil Co., 84 Idaho 288, 372 P.2d 135 (1962).
The cases supporting respondent’s position generally hold that a change in a zoning ordinance, or the enactment of a zoning ordinance governing previously unzoned land, will be applied to an application for a permit unless a permit has already been granted and substantial expenditures have been incurred in reliance on it. Baxley v. City of Frederick, 133 Okl. 84, 271 P. 257 (1928); McEachern v. Town of Highland Park, 124 Tex. 36, 73 S.W.2d 487 (1934); Franchise Realty Interstate Corporation v. City of Detroit, 368 Mich. 276, 118 N.W.2d 258 (1962) ; Russian Hill Improvement Ass’n v. Board of Permit Appeals of City and County of San Francisco, 66 Cal.2d 34, 56 Cal.Rptr. 672, 423 P.2d 824 (1967) ; Poczatek v. Zoning Board of Appeals of Town of Huntington, 26 A.D.2d 556, 270 N.Y.S.2d 980 (1966). We reject the reasoning of this line of authority. At least in those cases like the present one, in which no zoning ordinance was pending at the time an application for a building permit is filed, it is our opinion that an applicant is entitled to a building permit upon compliance with the then existing ordinance. The record in the present case clearly indicates that the City for several months failed to approve any of the various requests for building permits on the land, even though no contention was made that the requests failed to comply with existing [602]*602legal requirements. No zoning ordinance was pending before the council at the time. The importance of such a point is borne out by the fact that in several cases supporting the defendant’s position, the ordinance which was applied retroactively was already pending when the application was filed. Russian Hill Improvement Ass’n v. Board of Permit Appeals of City and County of San Francisco, 66 Cal.2d 34, 56 Cal.Rptr. 672, 423 P.2d 824 (1967) ; Socony-Vacuum Oil Co. v. Mount Holly Township, 135 N.J.L. 112, 51 A.2d 19, 169 A.L.R. 579 (1947) ; A. J. Aberman, Inc. v. City of New Kensington, 377 Pa. 520, 105 A.2d 586 (1954); Shender v. Zoning Board of Adjustment, 388 Pa. 265, 131 A.2d 90 (1957). Such is not the case here. Furthermore, to hold for the City in the present case would mean that a city, merely by withholding action on an application for a permit, could change or enact a zoning law to defeat the application. It could, in substance, give immediate effect to a future or proposed zoning ordinance before that ordinance was enacted by proper procedure. The present case effectively illustrates this possibility. The language of the Wisconsin Supreme Court in holding that a city could not deny an application for a building permit on the basis of an ordinance later enacted is pertinent here:
“ * * * it is apparent that the town officials were trying to keep one jump ahead of Humble and were attempting to change the rules after they had been hailed into court for what Humble believed was arbitrary, unreasonable, and capricious action. * * * If the town’s contention is upheld it would be tantamount to approving the proposition that every time a party came close to successfully challenging a town and its zoning board on its zoning actions, his gains could be legislated away by the enactment of an amendment to the ordinance.” State ex rel. Humble Oil & Refining Co. v. Wahner, 25 Wis.2d 1, at 14, 130 N.W. 2d 304, at 311 (1964).
Respondent also argues that appellant had requested Bonneville County to zone the land in question as a residential shopping center and should not now be heard to-complain when the City placed the land in the same zone. Under the facts of the present case, however, this argument carries little weight. The record clearly shows-that the comprehensive plan submitted by appellant when it requested a residential' shopping center zone showed a service station on its land with the requested access ways.
Respondent .in its brief, and in oral argument, conceded that the law in effect at the time of filing an application for a building permit controls when the applicant has a presently existing right to the permit and the issuing office has only a ministerial duty to issue it. Respondent, however, contends that such is not the case here because appellant had no right to a curb cut and access across the planting strip dedicated to the public, and hence had no presently existing right to a building permit. It is our opinion, however, that respondent is incorrect in its contention.
The Idaho decisions have established that the right of access from one’s land to a public way is a property right appurtenant to the owner’s land. White v. City of Twin Falls, 81 Idaho 176, 338 P.2d 778 (1959); Farris v. City of Twin Falls, 81 Idaho 583, 347 P.2d 996 (1959); Hughes v. State, 80. Idaho 286, 328 P.2d 397 (1958); Hadfield v. State ex rel. Burns, 86 Idaho 561, 388 P.2d 1018 (1964). A zoning ordinance cannot deprive a person of this property right without some police power justification. The leading case is Village of Sandpoint v. Doyle, 14 Idaho 749, 95 P. 945 (1908), in which the village sought to prohibit access from appellant’s property to a public bridge. In holding that access to the bridge could be reasonably regulated, but not prohibited, this court said:
“ * * * every property owner having a lot abutting on a street or thoroughfare has a special and peculiar right in that particular street not common to the other citizens. That right is a property right appurtenant to his lot, * * *. If he [603]*603cannot get out from his property and has no means of ingress or egress, then the streets and thoroughfares of the municipality will be of no use to him, and consequently his property will be of little benefit to him. While the public generally may have no special or particular interest in the right of ingress to any particular lot owner’s property, the lot owner has a very material and special interest in having the public reach his property and place of business, and in his right to go and come and carry on business and invite the public to his place ■of business. It has been held by the ■courts that to cut off this right of ingress and egress would be to take the lot owner’s property without due process of law.” (at 757, 95 P. at 947)
More directly in point is Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 286 P. 353 (1930), in which a city ordinance prohibiting the erection of a service station near a school, if the access to the station crossed a public sidewalk, was held invalid. This court there held, quoting from Village of Sandpoint v. Doyle, that an ordinance cannot unreasonably restrict a person’s right of access to a public way unless the ordinance is justified by the city’s police power. In the present case, as in Continental Oil, there are no reasonable grounds for denying the requested access. The testimony of Officer Lewis Nielson, an acknowledged traffic expert, establishes that an additional direct access firom the requested service station to 17th Street would not create a traffic hazard. In fact, he testified that it would add to the safety of the area by relieving congestion at the adjoining entrance and exit to the shopping center. Moreover, appellant introduced into evidence photographs illustrating that other service stations and businesses along 17th Street, in the near vicinity of appellant’s land, had several curb cuts giving direct access to 17th Street. Photographs of other service stations with more than one curb cut along West Broadway in Idaho Falls were also offered in evidence, but they were rejected for lack of a proper foundation. It is our opinion that appellant showed sufficient similarity between the area of West Broadway and 17th Street that the photographs should have been admitted for the purpose of showing that the denial of an access in the present case could not be justified on the grounds of safety. Herzog v. City of Pocatello, 83 Idaho 365, 363 P.2d 188 (1961).
The City offered no evidence of any special considerations justifying the denial of the additional direct access to the service station located on appellant’s land, while allowing almost unlimited curb cuts for other service stations and businesses along 17th Street. This court has held that to allow commercial activity along one side of a street while denying it along the other side, in the absence of some police power justification, constitutes unlawful discrimination. White v. City of Twin Falls, 81 Idaho 176, 338 P.2d 778 (1959).
On the basis of appellant’s evidence and the testimony of Officer Nielson, it is apparent that the City’s refusal to grant an access from appellant’s land to 17th Street is'not justified by considerations of the health, safety, morals or welfare of the City’s inhabitants. The fact that appellant’s application requested an access across the planting easement was not a sufficient reason to refuse to issue the permit, and appellant, having complied with all existing requirements at the time of filing its application, was at that time entitled to the building permit it requested. Under such circumstances the later enactment of Ordinances 1063 and 1115 did not divest appellant of its right to the permit. „
It is to be pointed out, however, that the result would be the same even if Ordinances 1063 and 1115 applied to appellant’s application. It is conceded that a service station is a permitted use under either of these ordinances if it utilizes only the access to the shopping center. The only question is whether the additional access requested by appellant would also [604]*604be permitted. It is our conclusion that there is nothing in either ordinance inconsistent with appellant’s request for a direct access to 17th Street. Indeed, Ordinance 1063 specifically provides that service stations are permitted within as RSC (Residential Shopping Center) zone:
“when access thereto is limited to access from the interior of the shopping center without curb cuts additional to the curb cuts provided for the shopping center area or where the service station is located in compliance with all set back requirements f or the shopping center buildings. * * (Emphasis added.)
The only purpose in using the word “or” in such a statement is to provide two clearly alternative conditions under which a service station can be constructed. It seems clear that when, the set back requirements are met, there are no restrictions on curb cuts.
Under Ordinance 1115, adopted in August 1964, which superseded Ordinance 1063, there is only one restriction on curb cuts, and it is clearly inapplicable in the present case. That portion of Ordinance 1115 pertaining to residential shopping centers provides that “No driveway shall be located closer than one hundred fifty (150) feet to the point of intersection of the front property line with the side property line which abuts upon a street * * Nothing in the Ordinance limits the number of accesses or curb cuts for a service station erected on appellant’s land. The district court, however, reasoned that service stations are permitted in a residential shopping center only if they are an integrated part of the shopping center and that a separate access across the planting easement would set the service station apart, thus removing it as an integral part of the zone. The district court was in error in this regard.
Nothing in the record indicates that a direct access to 17th Street would remove the requested service station from the shopping center. On the contrary, there is a great deal of testimony to the effect that a drive-in business is the only type of business which would be economically feasible on appellant’s land. Officer Nielson also testified that a separate exit for the service station would relieve congestion at the entrance to the shopping center itself, thus facilitating traffic movement and safety.
It is our conclusion then, that regardless of whether or not the ordinances apply to appellant’s request for a building permit, it should have been granted. Under the facts of this case the ordinances do not apply, but in any event they do not purport to limit the number of accesses to appellant’s land.
In regard to appellant’s request of November 9, 1965 for a permit for the construction of a drive-in restaurant on its land, it is our opinion that the district court was correct in ruling that Ordinance 1115 prohibits drive-in restaurants in an RSC-1 zone. This ordinance clearly applies to the request for a restaurant permit because the request was not made until November 9, 1965, which was long after the ordinance had been enacted. Appellant argues, however, that the ordinance does not exclude drive-in restaurants from an RSC-1 zone, and that if interpreted otherwise the ordinance would be arbitrary, discriminatory, and unconstitutional.
Among the uses permitted by Ordinance 1115 in an RSC-1 zone are “Restaurants, cafes, tearooms” and “Other uses similar to the foregoing * * Appellant argues that drive-in restaurants are sufficiently similar to restaurants as to come within the language of Ordinance 1115. Drive-in restaurants, however, are specifically dealt with in another ordinance and are limited to Highway Commercial Zones (HC-1). The Idaho Falls City Council considered that there was sufficient difference between drive-in restaurants and other restaurants to justify placing the two types of businesses in different zones. (See Ordinance No. 1063, which stated under permitted uses in RSC zone “Restaurant service, including liquor service at tables only, without bar, no curb or drive-in service.”) It can hardly be said, then, that the City [605]*605contemplated allowing drive-in restaurants in an RSC-1 zone by using the phrase “Other uses similar to the foregoing * * * ” in Ordinance 1115. Since the Council intended to exclude drive-in restaurants from an RSC-1 zone, the only question remaining is whether the distinction drawn between restaurants and drive-in restaurants is reasonable.
Appellant relies heavily on Frost v. Village of Glen Ellyn, 30 Ill.2d 241, 195 N.E.2d 616 (1964), to sustain its contention that an ordinance permitting restaurants in a particular zone but excluding drive-in restaurants from the same zone is arbitrary and unreasonable and therefore void. The Frost case is very similar to the case at bar, even insofar as drive-in restaurants were specifically zoned to a different zone. The Illinois Supreme Court held the zoning ordinance invalid, stating:
“We fail to see how a drive-in restaurant of the nature here planned is significantly more detrimental to the public health, safety, welfare or morals than a restaurant fully enclosed within four walls, or than a bakery, a candy or ice cream store, a grocery store, a meat market, a delicatessen, or a retail liquor store and many more of the sixty-two businesses permitted in B-2 districts.” (at 619)
Similarly in State ex rel. Spiccia v. Abate, 2 Ohio St.2d 129, 207 N.E.2d 234 (1965), the plaintiff’s land was zoned for use as a restaurant. Drive-in restaurants were specifically zoned to another area. Nevertheless the Ohio Supreme Court held that zoning ordinances, being in derogation of the common law, must be liberally construed and therefore held that the term “restaurant” as used in the ordinance included a drive-in restaurant. To the same effect is Burke v. O’Connor, 53 Misc.2d 669, 279 N.Y.S.2d 633 (1967).
Although the foregoing cases support appellant’s contention, it is our opinion that there are significant differences between restaurants and drive-in restaurants. The two types of restaurants may be sufficiently similar that drive-ins will be allowed wherever restaurants are allowed, absent a special ordinance dealing with drive-ins. See: Fryer v. Board of Zoning Adjustment of Kansas City, 359 Mo. 559, 222 S.W.2d 761 (1949); Food Corp. v. Zoning Board of Adjustment of City of Philadelphia, 384 Pa. 288, 121 A.2d 94 (1956) ; Earle v. Zoning Board of Review of City of Warwick, 191 A.2d 161 (R.I.1963). We cannot say, however, that a legislative decision to assign different zoning classifications to the two businesses is so arbitrary or unreasonable as to render Ordinance 1115 unconstitutional. Officer Nielson testified that drive-in restaurants create a great volume of traffic. It was also Officer Nielson’s opinion that of the several accidents occurring at the shopping center at First and Holmes (one of the streets adjacent to appellant’s land) a drive-in restaurant was a major factor in causing the accidents. And it should be noted that drive-in restaurants create problems of littering and noise not usually associated with regular restaurants. Given these distinctions between the two types of business, the City of Idaho Falls, acting under its police power, could justifiably confine each business to a different zone.
The judgment of the trial court is reversed and the cause remanded with directions to enter conclusions of law and judgment in conformity with this opinion.
Costs to appellant.
SMITH, C. J., and TAYLOR and SPEAR, JJ., concur.