Arkules v. Board of Adjustment

780 P.2d 431, 161 Ariz. 598, 32 Ariz. Adv. Rep. 86, 1989 Ariz. App. LEXIS 86
CourtCourt of Appeals of Arizona
DecidedApril 13, 1989
DocketNo. 2 CA-CV 88-0349
StatusPublished
Cited by1 cases

This text of 780 P.2d 431 (Arkules v. Board of Adjustment) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arkules v. Board of Adjustment, 780 P.2d 431, 161 Ariz. 598, 32 Ariz. Adv. Rep. 86, 1989 Ariz. App. LEXIS 86 (Ark. Ct. App. 1989).

Opinion

OPINION

LACAGNINA, Chief Judge.

This appeal arises from a special order entered after final judgment on remand [599]*599from a previous appeal. Both parties appeal from the order of the superior court. Sam DeMuro and the Board of Adjustment of the Town of Paradise Valley argue that the superior court has no authority to permit the filing of an amended complaint seeking an injunction against DeMuro because it lacks subject matter jurisdiction and that Bernard and Barbara Arkules must file a new complaint. Arkules argues the superior court has jurisdiction to entertain his motion for imposition of the injunction in furtherance of the remand without the necessity of filing another complaint.

For the reasons stated below, we affirm the order of the superior court and remand for further proceedings necessary to give effect to our prior opinion.

FACTS AND PROCEDURAL HISTORY

The underlying facts leading to the first appeal are stated in Arkules v. Board of Adjustment of Paradise Valley, 151 Ariz. 438, 728 P.2d 657 (App.1986). Briefly stated, DeMuro received a variance from the Board permitting the use of a nonapproved color for the exterior of his home. The Town’s mountain building regulations required that exterior colors blend with the mountain setting. DeMuro requested a variance because the approved colors were incompatible with his Mediterranean-style home which required a white or off-white color. Arkules, a neighbor, filed a complaint against DeMuro and the Board for declaratory judgment and injunction. The superior court permitted Arkules to designate his complaint as a special action and denied him relief. On appeal, this court held that the variance was void because the Board had no powers other than those granted by statute. We found that those statutes and rules and regulations promulgated by the Board prohibited a color variance because color was not a special circumstance or factor involving the size, shape, location, topography or nature of surrounding property depriving the owner of benefits, uses, or privileges enjoyed by other properties of the same zoning classification. Arkules v. Board of Adjustment, supra.

In Arkules, we remanded the case for entry of judgment declaring the variance invalid. After denial of the petition for review, this court’s mandate was issued commanding such proceedings be held as required to comply with the opinion attached to the mandate. Arkules moved this court for additional instructions to be included in the mandate to provide for an injunction. That motion was denied. The superior court entered judgment on January 27, 1987, declaring the variance void. The signing of the judgment was preceded by the following minute entry of January 26, 1987:

This matter has been under advisement.
The parties’ latest memoranda have been considered. Pursuant to the mandate and opinion of the Court of Appeals which declared the variance invalid, the Court has signed the form of judgment submitted by Mr. Ollinger. This is a non-final judgment entered without prejudice to Plaintiff renewing a request for an injunction once the Town has considered and denied Plaintiff’s request to enforce the ordinance. This Court will not interfere with the Town’s executive powers regarding discretionary enforcement until the Town has made some arguably capricious decision regarding enforcement of the ordinance. See especially Town of Paradise Valley v Gulf Leisure Corp., 557 P2d 532, 27 Ariz.App. 600 at 610 and 611 (1976).

The Town of Paradise Valley has determined not to enforce its mountain building regulations against DeMuro relating to the color of his house. Arkules moved for entry of an injunction, and DeMuro responded by motion to dismiss based on the argument that the superior court lacked subject matter jurisdiction in a statutory special action to hear a claim for injunction or any other form of relief except as provided by the statute itself.

The superior court resolved the request for injunction and opposition thereto by the following order:

Arguably, this Court now has the power to issue an injunction under the lan[600]*600guage of “order” in Rule 6 of the Rules of Procedure for Special Action. But in order not to compromise what is admittedly a debatable issue, it appears safer to require Plaintiff to amend his pleadings in the event Plaintiff seeks formal injunctive relief. If Plaintiff does file a Motion to Amend, the net result will be that this Court will have appellate jurisdiction to review the decision by the Board of Adjustment and also original jurisdiction to consider facts and, if they warrant it, to issue an injunction. Failure to do so by Plaintiff will limit this Court’s jurisdiction to a special action jurisdiction, viz, to an approval or disapproval of the decision by the Board of Adjustment regarding DeMuro’s house color.

SUPERIOR COURT JURISDICTION

DeMuro argues that on remand the superior court only has jurisdiction to enter a judgment declaring the variance void, thereby complying with the court of appeals opinion. He argues that after entry of judgment, the case was concluded and, if Arkules wanted to pursue the issuance of an injunction to correct the wrong he suffered by the unlawful conduct of the Board and DeMuro, he must file a new complaint seeking that relief. DeMuro argues this is so because the superior court has only appellate jurisdiction pursuant to A.R.S. § 9-462.06(J) and, therefore, sitting as an appellate court, it has only that subject matter jurisdiction which the Board had in the proceedings from which the special action was taken, citing Madsen v. Fendler, 128 Ariz. 462, 626 P.2d 1094 (1981), and Berry v. Arizona State Land Dept., 133 Ariz. 325, 651 P.2d 853 (1982). We disagree. Those cases both dealt with judicial review authorized under A.R.S. § 12-901, the Administrative Review Act. Review under the Act is specifically limited, with certain exceptions, to the subject matter jurisdiction asserted in the administrative hearing. Madsen v. Fendler, supra. In both cases, the superior court was acting as an appellate court in its review.

In this case, Arkules filed, by amended complaint, a special action in the superior court, giving the superior court broader powers in the exercise of its original jurisdiction. See Ariz.R.P.Spec.Ac. 1(a) and 4(a), 17B A.R.S. These powers include granting his requested relief, an injunction, upon making the proper findings. Ariz.R. P.Spec.Ac. 6, 17B A.R.S.; Ariz.R.Civ.P. 65, 16 A.R.S. In addition, Madsen holds that judicial review pursuant to § 12-901 prohibits the addition of new parties which were not present at the administrative hearing. It is undisputed that Arkules was not present at the original board of adjustment hearing, but was nevertheless authorized under A.R.S. § 9-462.06(K) to seek review of its decision by special action.

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Bluebook (online)
780 P.2d 431, 161 Ariz. 598, 32 Ariz. Adv. Rep. 86, 1989 Ariz. App. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arkules-v-board-of-adjustment-arizctapp-1989.