City of Phoenix v. Burke

452 P.2d 722, 9 Ariz. App. 395, 1969 Ariz. App. LEXIS 447
CourtCourt of Appeals of Arizona
DecidedApril 3, 1969
Docket1 CA-CIV 630
StatusPublished
Cited by17 cases

This text of 452 P.2d 722 (City of Phoenix v. Burke) 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
City of Phoenix v. Burke, 452 P.2d 722, 9 Ariz. App. 395, 1969 Ariz. App. LEXIS 447 (Ark. Ct. App. 1969).

Opinions

DONOFRIO, Chief Judge.

On October 28, 1965, a rezoning application was filed with the City of Phoenix Planning Department requesting that certain property be rezoned from Rl-6 to to R-3. Rl-6 means that under the Phoenix Zoning Ordinance the property can only be developed for single-family residences on lots of 6000 sq. ft. or larger. R-3 is [396]*396the zoning classification ' for development of multiple-family residences on lots with a’ minimum of 6000 sq. ft. and with no more than one dwelling unit and customary accessory buildings for each 3000 sq. ft. of lot area.

The application was heard by the Planning Commission on December 14, 1965, .and the Planning Commission recommended that the application be denied. It was their reasoning that Rl-6 zoning afforded a reasonable use of the land and the ..existing R-3 zoning in the area provided adequate multiple-family potential in the :area. The City Council heard the application on January 18, 1966, and denied the requested zoning amendment.

On January 21, 1966, the applicant petitioned the City Council to reopen the application. The Council felt that it would be better if the applicant would file a new ’application for rezoning with the City Planning Commission. The city ordinance prohibits applications from being filed within a period of one year after a previous application has been heard and acted ppon. It was the opinion of the Commission that there were no extenuating circumstances which would justify a waiver ,of the one.-year waiting requirement.

■. The property owners then initiated this action for a Declaratory Judgment, seeking a determination that the existing RI-6 single-family residence zoning on their property was unreasonable, confiscatory, and violated their rights under the United States Constitution, the Arizona Constitution and the laws of Arizona. The trial court decided the issue against the City and granted judgment in favor of the property owners.

The question presented to this Court is: \yas it proper for the trial court in effect to set aside the City Council’s decision that certain property should not be rezoned ?

Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016 (1926), is the landmark case in zoning. In that case the Village of Euclid attempted to regulate the location of the business and residential districts. The entire village was divided into use districts and these districts stringently restricted the use to which buildings erected therein could be put. The Supreme Court of the United States, in discussing the constitutionality of such an ordinance, said that before such an ordinance could be declared unconstitutional the provision must be clearly arbitrary and unreasonable, and must have no substantial relation to the public health, safety, morals or general welfare.

■ The Arizona Supreme Court has 'followed .this rule. In City of Tucson v. Arizona Mortuary, 34 Ariz. 495, 272 P. 923 (1928), the Euclid case was quoted from quite liberally, and the court pointed out what was to be the test in determining the validity of zoning ordinances in Arizona.

“It therefpre appears that the highest authority in the land has held that ordinances dividing cities into districts on the basis of whether they are residential or business and limiting the use of real estate within these various districts to certain purposes are to be sustained in principle, it being necessary in order that they be declared unconstitutional that it affirmatively appear the restriction is clearly arbitrary and unreasonable, and has not any substantial relation to the public health, safety, morals or general welfare. With this principle before us as the guiding star, let us next consider the reasonableness of the particular ordinance in question.” 34 Ariz. at pages 506, 507, 272 P. at page 927.

This test of validity places an affirmative burden on the complainants to prove the restrictions are clearly arbitrary and unreasonable. They must show that if the ordinance is enforced they will be precluded from using their property for any purpose to which it is reasonably adapted. The zoning ordinance will be presumed valid, and the plaintiffs must show that the restrictions as applied are unrea[397]*397sonable and have no substantial relation to the public health, safety, morals or general welfare of the community. City of Phoenix v. Fehlner, 90 Ariz. 13, 363 P.2d 607 (1961); Mueller v. City of Phoenix, 102 Ariz. 575, 435 P.2d 472 (1967).

It is the appellees’ contention that they have sustained their burden of proof. The trial court made findings of fact, and among other things, the findings of fact included :

“That on or about the 25th day of August, 1959 the City of Phoenix extended its zoning over the above described property and said property was zoned Residential Rl-6 Single Family Residence.
“That prior to August 28, 1965 the above described real property could not reasonably be developed under its designated zoning classification Residential Rl-6 Single Family Residence.
“That prior to August 28, 1965 the above described real property could reasonably be developed only under a designated zoning classification of R3 Multi-Family Residence, as set forth in Ordinance G— 449 the zoning ordinance of the City of Phoenix and amendments thereto.”

To what extent are we bound by these trial court findings of fact? There are, as we see it, three prevalent views as to what weight should be given to a trial court’s findings of fact when it overrules a zoning commission and finds the restrictions unreasonable. The position espoused by the California courts is that the trial court’s findings and conclusions as to the unreasonableness of the ordinance will not be binding if the court record shows the question is debatable. Hamer v. Town of Ross, 59 Cal.2d 776, 31 Cal.Rptr. 335, 382 P.2d 375 (1963); Johnston v. City of Claremont, 49 Cal.2d 826, 323 P.2d 71 (1958). This is the position accepted by the judges in Division Two of this Court in Rubi v. 49’er Country Club Estates, Inc., 7 Ariz.App. 408, 440 P.2d 44 (1968). Another view is that the trial court’s findings will be conclusive and its judgment sustained unless the findings are obviously wrong or against the preponderance of the evidence. Appeal of Dance Oil Service, Inc., 409 Pa. 392, 187 A.2d 166 (1963); Scott v. City of Springfield, 83 Ill.App.2d 31, 226 N.E.2d 57 (1967); Olsen v. City of Little Rock, 241 Ark. 155, 406 S.W.2d 706 (1966).

The third view is the position accepted by the Supreme Court of Washington. We think this is the best one, and so follow it. In the Washington case of Carlson v.

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City of Phoenix v. Burke
452 P.2d 722 (Court of Appeals of Arizona, 1969)

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Bluebook (online)
452 P.2d 722, 9 Ariz. App. 395, 1969 Ariz. App. LEXIS 447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-phoenix-v-burke-arizctapp-1969.