P.F. West, Inc. v. Superior Court

676 P.2d 665, 138 Ariz. 31, 1984 Ariz. App. LEXIS 340
CourtCourt of Appeals of Arizona
DecidedJanuary 26, 1984
DocketNo. 2 CA-SA 006
StatusPublished
Cited by7 cases

This text of 676 P.2d 665 (P.F. West, Inc. v. Superior Court) 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
P.F. West, Inc. v. Superior Court, 676 P.2d 665, 138 Ariz. 31, 1984 Ariz. App. LEXIS 340 (Ark. Ct. App. 1984).

Opinion

OPINION

HOWARD, Judge.

This special action was taken from the order of the trial court dated November 23, 1983, and its supplemental order dated November 30, 1983, denying petitioners’ request for relief and dismissing their complaint for special action filed therein. Because this case presents a narrow legal issue of first impression, rather than controverted facts, and is a matter of important public interest, we accept jurisdiction pursuant to Rule 8(a), Rules of Procedure for Special Actions, 17A A.R.S. See University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983).

Petitioners are the developer and owner, respectively, of certain real property located at the intersection of Swan Road and Skyline Drive in Pima County. In the course of developing plans for a proposed apartment complex to be constructed on this property, petitioners’ planning consultants requested and obtained from the Pima County zoning inspector on April 11, 1983, his interpretation of certain provisions and terms of the county zoning ordinance.

On August 4, 1983, pursuant to A.R.S. § 11-807(C), an appeal from this interpretation was taken to the Pima County Board of Adjustment District No. 1 by Pamela R. Patton, as representative of herself, adjacent property owners and the legal committee of the Coronado Foothills Estates Homeowners Association (hereinafter collectively referred to as “appellants”). At a hearing before the board on August 30, the petitioners objected to the appeal on the ground that this court’s decision in Perper v. Pima County, 123 Ariz. 439, 600 P.2d 52 (App.1979) required a showing of special damage in order to appeal, and that the appellants had incurred none. Petitioners accordingly argued that the board had no jurisdiction to hear the appeal. Following a continued hearing on September 16, the board issued a written memorandum deciding that the Perper decision did not apply and that appellants had standing to request an interpretation of the ordinance by the board. The board simultaneously ruled on the merits of the appeal, granting a portion of the requested relief.

On October 13, petitioners filed a complaint for special action in the superior court, seeking review of the board’s ruling on jurisdiction. On October 17, a pleading denominated “Amended Complaint for Special Action and Notice of Appeal” was filed, seeking special action relief pertaining to the jurisdiction issue and reversal of the board’s decision on the merits pursuant to A.R.S. § 11-807(D). The only named defendants were Pima County and the Board of Adjustment for District No. 1.

Following a hearing on November 21, which the parties stipulated would address only the issue of the board’s jurisdiction, the trial court ordered dismissal of the special action. The court further denied the defendant’s motion to require joinder of Patton as a party, without prejudice to her filing a motion to intervene with respect to the appeal of the board’s decision on the merits. Pursuant to the parties’ stipulation, the court entered a supplemental order on November 30 as follows:

“It is ORDERED that the Special Action filed by the Petitioners is dismissed based on the following specific grounds:
1. The Special Damage Rule set forth by the Arizona Court of Appeals in Perper v. Pima County, 123 Ariz. 439, 600 P.2d 52, 54 (1979) applies only to appeals filed with the Superior Court pursuant to A.R.S. § 807(D) rather than appeals to the Board of Adjustment.
2. Appeals to a Board of Adjustment under A.R.S. § 11-807(C) may be maintained by ‘any person’ who feels there is an error or doubt in the interpretation of a zoning ordinance without any requirement that such person make a showing of special damage or by person who can show that due to unusual circumstances attaching to his property an unnecessary hardship is being inflicted on him.”

[33]*33This special action followed, presenting solely the issue of whether a showing of special damage is a prerequisite to standing to appeal to the Board of Adjustment pursuant to A.R.S. § 11-807(C). The Coronado Foothills Homeowners Association, Inc., has also filed a motion to intervene in this special action.

The Arizona statutes pertaining to county planning and zoning were originally enacted in 1949 and, as relates to this special action, have remained relatively unchanged. See A.R.S. §§ 11-801, et seq. (originally codified at A.C.A. §§ 17-1901, et seq. (1952 supp.)). The statutes authorize the county board of supervisors to adopt zoning ordinances, compliance with which is enforced by requiring the issuance of building permits. A.R.S. § 11-808. Under the administrative scheme created by the legislature, anyone seeking to build a structure must first obtain a building permit from the county zoning inspector, who is charged with enforcing compliance with the zoning ordinance and may not issue a permit until it appears that the proposed structure is in full conformity with applicable statutes, ordinances and regulations. Id. The statute declares unlawful the erection of any structure or use of land in violation of any zoning ordinance or regulation, and further provides:

“If any building or structure is or is proposed to be erected, constructed, reconstructed, altered, maintained or used or any land is or is proposed to be used in violation of this chapter or any ordinance, regulation or provision enacted or adopted by the board under the authority granted by this chapter, the board, the county attorney, the inspector or any adjacent or neighboring property owner who is specially damaged by the violation, in addition to the other remedies provided by law, may institute injunction, mandamus, abatement or any other appropriate action or proceedings to prevent or abate or remove the unlawful erection, construction, reconstruction, alteration, maintenance or use.” (Emphasis supplied) A.R.S. § 11— 808(D).

In tacit recognition of the problems arising from the application of zoning ordinances to specific factual situations and the nee,d for some degree of flexibility, the legislature followed the common practice of providing for the creation of boards of adjustment with the power to:

“1.

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Bluebook (online)
676 P.2d 665, 138 Ariz. 31, 1984 Ariz. App. LEXIS 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pf-west-inc-v-superior-court-arizctapp-1984.