Austin Shea (Arizona) 7th Street & Van Buren, L.L.C. v. City of Phoenix

142 P.3d 693, 213 Ariz. 385, 483 Ariz. Adv. Rep. 9, 2006 Ariz. App. LEXIS 89
CourtCourt of Appeals of Arizona
DecidedAugust 3, 2006
DocketNo. 1 CA-CV 05-0062
StatusPublished
Cited by10 cases

This text of 142 P.3d 693 (Austin Shea (Arizona) 7th Street & Van Buren, L.L.C. v. City of Phoenix) 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
Austin Shea (Arizona) 7th Street & Van Buren, L.L.C. v. City of Phoenix, 142 P.3d 693, 213 Ariz. 385, 483 Ariz. Adv. Rep. 9, 2006 Ariz. App. LEXIS 89 (Ark. Ct. App. 2006).

Opinion

OPINION

NORRIS, Judge.

¶ 1 This appeal arises from a decision by the City of Phoenix Board of Adjustment (“the Board”) to rehear an appeal taken by Plaintiff/Appellee Austin Shea (Arizona) 7th Street and Van Buren, L.L.C. (“Shea”) from a zoning ordinance interpretation made by the City of Phoenix Zoning Administrator. On rehearing, the Board reversed a decision it had previously rendered in Shea’s favor. Shea filed a special action proceeding against Defendants/Appellants City of Phoenix (“the City”) and the Board, asserting the Board abused its discretion, first, in deciding to rehear its appeal and, second, in reversing its original decision. Deciding the first but not the second issue, the superior court ruled in Shea’s favor and found the Board had abused its discretion in rehearing the appeal.

¶2 The issue before us is whether the superior court correctly determined the Board had abused its discretion in deciding to rehear Shea’s appeal. To decide this issue, we must first interpret the zoning ordinance provision that provides an “appeal may be reheard only when there has been a manifest error affecting the Board’s action.” We must then decide whether the Board acted arbitrarily, capriciously or abused its discretion in deciding to rehear Shea’s appeal. For the following reasons, we reverse the superi- or court’s judgment and remand for further proceedings consistent with this decision.

FACTS AND PROCEDURAL HISTORY

¶ 3 Shea owns property in a City-designated redevelopment area at the northeast corner of 7th Street and Van Burén Street, near downtown Phoenix. Section 705.2(A)(7)(d) (2005) of the Phoenix Zoning Ordinance prohibits “outdoor advertising” structures in any designated redevelopment area.

¶4 In 1999, Shea began efforts to construct a “media sculpture” on the site. The Phoenix Planning Department opposed the project because it believed the project was “outdoor advertising”1 and therefore prohibited. In March 2000, Shea filed a proposed text amendment to the Zoning Ordinance that would have allowed a use permit procedure for outdoor advertising in redevelopment areas. The Phoenix City Council denied the proposal in November 2000.

¶ 5 Shea then revised its proposed project. Shea proposed building a two-story 900 square foot glass structure that would house a television broadcast station and four video screens, each 16' x 12', set back at least 6'1" from the structure’s inside windows.2 Shea planned on displaying commercial advertising, news, weather, political messages, and general information on downtown events and activities on the video screens. Shea also planned on selling specialized motion picture and video equipment from the glass structure. The City placed a hold on Shea’s building permit application because the video screens constituted, in its view, off-site ad[387]*387vertising in violation of § 705.2(A)(7)(d) of the Zoning Ordinance.

¶ 6 In October 2001, Shea filed an Application for Zoning Adjustment with the City’s Zoning Administrator and requested an interpretation of § 705.2(A)(7)(d). After holding a public hearing on the application, the Zoning Administrator concluded Shea’s proposed use of the video screens was “not addressed in the [zoning] [ordinance” and was therefore “prohibited.”3 Shea appealed the decision to the Board and it upheld the Zoning Administrator’s decision.

¶ 7 In March 2002, Shea filed a Complaint for Statutory Special Action, claiming the Board’s decision was arbitrary, capricious, and an abuse of discretion. The superior court disagreed and found the proposed “land use is simply technology enhanced ‘outdoor advertising’ not appurtenant to any permitted use of the land because the primary land use is outdoor advertising.” Accordingly, the superior court concluded the Board had not abused its discretion or acted arbitrarily or capriciously in interpreting and applying the Zoning Ordinance.

¶ 8 Shea appealed. In March 2005, we affirmed the superior court’s decision. Austin Shea (Arizona) 7th Street and Van Buren, L.L.C. v. City of Phoenix, 1 CA-CV 02-0479 (Ariz.App. Mar. 22, 2005) (mem.decision).

¶ 9 In November 2002, before we issued our memorandum decision, Shea again revised its proposed project. This time, Shea proposed leasing the glass structure to a tenant who would display and sell motion picture and video equipment and operate a television station that would broadcast commercial and informative programming to the four video screens and over the Internet. An on-site employee would run the sales operation and the television station. Shea asserted that, because of these other on-site activities, the video screens were “appurtenant to a permitted use of the property, [and did] not qualify as outdoor advertising.”

¶ 10 In connection with the revised proposal, Shea requested the Zoning Administrator to interpret the Zoning Ordinance by responding to five questions (“interpretive questions”). The interpretive questions were as follows:

1) whether a television screen displaying the video stream being broadcast by a television broadcasting station from within the station’s building is appurtenant to the television broadcasting station;
2) whether an operational television screen of the type sold on the premises, displayed in a window display of such merchandise, is appurtenant to a business involved in the sales of specialized motion picture/television equipment;
3) whether a television screen located within a building, more than six feet inside a window but visible from outside the building, is regulated under Section 705 of the Zoning Ordinance;
4) whether a television screen, appurtenant to a permitted use of the building, located within the building and more than six feet inside the window but visible from the exterior, is regulated as a sign under Section 705 of the Zoning Ordinance, and
5) whether the City’s regulations on outdoor advertising, as they may apply to the display of television broadcasts on video screens visible from the exterior of a building, are unconsititional [sic].

¶ 11 After holding another public hearing, in February 2003, the Zoning Administrator responded to Shea’s request. The Zoning Administrator concluded the proposed use was “sufficiently unusual that it is not part of the current regulatory scheme,” was not “sufficiently analogous to any other permitted use,” and was “prohibited.”

¶ 12 Shea appealed the Zoning Administrator’s decision to the Board. The Board heard Shea’s appeal on March 6, 2003. During the hearing, speakers representing Shea and the City first clarified that Shea was asking for a citywide, not simply a “site specific,” response to the interpretive questions. The speakers then addressed Shea’s [388]*388interpretive questions and focused their presentations on whether the proposed video screens were appurtenant to a permitted use and whether, given their 6'1" setback, they were window signs and thus unregulated by § 705 of the Zoning Ordinance. The Board did not consider whether the video screens were governed by other provisions of the Zoning Ordinance applicable to signs.

¶ 13 On motion by Board member Patrick Paul, the Board voted 3-2 to answer “yes” on questions one and two and “no” on questions three and four.

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Bluebook (online)
142 P.3d 693, 213 Ariz. 385, 483 Ariz. Adv. Rep. 9, 2006 Ariz. App. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-shea-arizona-7th-street-van-buren-llc-v-city-of-phoenix-arizctapp-2006.