Opinion
1 CA-CV 22-0164
02-09-2023
RANDALL BAHR, et al., Plaintiffs/Appellants, v. CITY OF SCOTTSDALE, et al., Defendants/Appellees.
Timothy A. LaSota, PLC, Phoenix By Timothy A. LaSota Counsel for Plaintiffs/Appellants Scottsdale City Attorney's Office, Scottsdale By Eric C. Anderson Counsel for Defendants/Appellees
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. LC2021-000210-001 The Honorable Rodrick J. Coffey, Judge
AFFIRMED
Timothy A. LaSota, PLC, Phoenix By Timothy A. LaSota Counsel for Plaintiffs/Appellants
Scottsdale City Attorney's Office, Scottsdale By Eric C. Anderson Counsel for Defendants/Appellees
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Maria Elena Cruz and Judge Angela K. Paton joined.
Judge Peter B. Swann was a sitting member of this court when the matter was assigned to this panel of the court. He retired effective November 28, 2022. In accordance with the authority granted by Article 6, Section 3, of the Arizona Constitution and pursuant to A.R.S. § 12-145, the Chief Justice of the Arizona Supreme Court has designated Judge Swann as a judge pro tempore in the Court of Appeals for the purpose of participating in the resolution of cases assigned to this panel during his term in office and for the duration of Administrative Order 2022-162.
MEMORANDUM DECISION
SWANN, Judge:
¶1Rebecca and Randall Bahr appeal the superior court's order affirming the Scottsdale Board of Adjustment's denial of their request for a disability accommodation that would allow them to maintain a residential wall one foot higher than allowed by city code. We affirm because we find no abuse of discretion in the determination that the Bahrs failed to prove the requested accommodation was necessary under the Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601 et seq.
FACTS AND PROCEDURAL HISTORY
¶2The Bahrs reside in a home subject to Scottsdale Zoning Ordinance § 5.504(G)(2), which limits the height of side and rear walls to eight feet. The Bahrs erected a seven-foot block wall in 2007, and added a two-foot metal extension in 2018. In 2021, after a neighbor complained about the wall, the Bahrs applied to the Board of Adjustment for a disability accommodation based on Rebecca's autism.
¶3The Bahrs asserted that they erected the seven-foot wall in response to a neighbor's aggressive behavior, and that they added the two-foot extension to shield their property from noise, lights, and a neighbor's threat to erect cameras facing into their yard. They claimed that Rebecca's autism was a cause of the neighborly conflict, and that people with autism may be unusually sensitive to light, sound, and disruptions to routine. They further asserted that the nine-foot wall had proven sufficient to allow Rebecca to enjoy her property, and that an eight-foot wall would be insufficient.
¶4By the time the matter came before the Board for hearing, the complaining and other neighbors had come to support the nine-foot wall. The Board, however, unanimously denied the Bahrs' application.
¶5The Bahrs then commenced a special action in the superior court. The superior court affirmed the Board, finding no abuse of discretion or misapplication of the law in the Board's determination that the Bahrs failed to prove that a nine-foot wall was necessary. The Bahrs appeal.
DISCUSSION
¶6The Bahrs first contend that the superior court erred by reviewing the Board's decision for abuse of discretion. The matter came before the court as a special action under A.R.S. § 9-462.06(K). Accordingly, the court's "primary purpose [was] to determine whether the [Board's] decision was arbitrary, capricious, or an abuse of discretion." Blake v. City of Phoenix, 157 Ariz. 93, 96 (App. 1988). Though the court could draw its own conclusions regarding whether the Board misinterpreted the law, Murphy v. Town of Chino Valley, 163 Ariz. 571, 574 (App. 1989), it was bound by and could not reweigh the evidence presented to the Board, Lane v. City of Phoenix, 169 Ariz. 37, 40 (App. 1991). The superior court correctly applied the foregoing standards, which apply to our review as well. See Murphy, 163 Ariz. at 574.
¶7The Bahrs next contend that the Board conflated the disability accommodation request with a variance request. The record reveals otherwise. The Board's chairperson recited the elements of the city's disability accommodation ordinance at the outset of the hearing, and the members' discussion reflects that they analyzed the request within the framework of that ordinance. Though the Bahrs complain that the Board improperly discussed precedent-setting and habitability issues, the record shows that the cited discussions were directed to the accommodation inquiry.
¶8The Bahrs further contend that application of the city ordinance was improper because it is "more restrictive" than federal law. The FHA provides that it is unlawful to "refus[e] to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped resident] equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). State law similarly provides. See A.R.S. § 41-1491.19(E)(2). Scottsdale Zoning Ordinance § 1.806(A) requires the Board to consider whether the requested accommodation "is necessary." The Bahrs contend that "is necessary" is a stricter standard than "may be necessary" and that the federal standard governs. The record reflects, however, that necessity was evaluated consistent with the FHA.
¶9Under the FHA, "[t]he necessity element is . . . a causation inquiry that examines whether the requested accommodation or modification would redress injuries that otherwise would prevent a disabled resident from receiving the same enjoyment from the property as a non-disabled person would receive." Anderson v. City of Blue Ash, 798 F.3d 338, 361 (6th Cir. 2015) (citation omitted). To demonstrate necessity, plaintiffs must "show that, but for the accommodation, they likely will be denied an equal opportunity to enjoy the housing of their choice." Cimarron Foothills Cmty. Ass'n v. Kippen, 206 Ariz. 455, 459, ¶ 10 (App. 2003) (quoting Giebeler v. M&M Assocs., 343 F.3d 1143, 1155 (9th Cir. 2003)). Absent such "a causal link between defendants' policy and the plaintiffs injury, there can be no obligation on the part of defendants to make a reasonable accommodation." Id. (quoting Giebeler, 343 F.3d at 1155).
¶10We disagree with the Bahrs' contention that the Board "task[ed] the Bahrs with disproving a pool of potential other options as a required step to showing their request was 'necessary.'" To be sure, several Board members concluded that the Bahrs should have pursued alternative remedies, including installing curtains and initiating criminal, civil, and zoning-enforcement actions. But six of the seven members stated on the record that the Bahrs' request failed because they did not show how a code-compliant wall would have been insufficient to secure their equal enjoyment of the dwelling. That analysis was consistent with the FHA. And the Board's conclusion is supported by the record. The Bahrs asserted that "based on their experience of standing in their yard" and assessing neighbors' viewpoints, a nine-foot wall was required to "ma[k]e them feel comfortable working in the yard," and an eight-foot wall "would not be sufficient to protect Mrs. Bahr or allow her to have sufficient privacy." But they provided no evidence confirming their assessment of the wall height's impact on neighbor viewpoints, and no evidence explaining the contours of "sufficient privacy" and "comfort" in the context of Rebecca's disability-related needs. And though they further asserted that an eight-foot wall would be insufficient to block a neighbor's lights, they provided no evidence showing the lights' height, location, or orientation.
The Bahrs contend that one of the members confused the necessity standard with a habitability standard because he noted that "the fact that she lived there so many years with the chain-link fence and then with the shorter block wall, kind of bears on the issue of how necessary it is. Because it was something that was lived with for a long period of time." We interpret that remark not as conflating the standard, but as questioning the Bahrs' credibility. The Bahrs also challenge the same member's statement that he deemed the record insufficient to show that a nine-foot wall "is exactly the accommodation that's required in the circumstances." We do not agree with the Bahrs that this remark, which was made in the context of a discussion of the Bahrs' failure to show that a nine-foot wall would cure issues that an eight-foot wall would not, placed the burden on the Bahrs to show that a nine-foot wall was their only alternative.
The Bahrs' assertions were made through their application and their attorney at the hearing. We note that the formal rules of evidence did not apply. See A.R.S. § 9-462(B).
¶[11 Based on the foregoing, we perceive no abuse of discretion. Like the superior court, we are bound by the factual record before us. Though the Board could have interpreted the evidence differently and arrived at a different conclusion, we are not permitted to reweigh the evidence. We note, however, that the Bahrs may seek a slightly lower wall extension through an administrative process, and that this may serve both their and their neighbors' interests. See Scottsdale Zoning Ordinance § 1.920 (providing that "[t]he zoning administrator may administratively approve up to at ten percent (10%) modification of a development standard or separation requirement upon finding that such a modification will further the policies contained in the Arizona and federal fair housing laws and the Americans with Disabilities Act.").
CONCLUSION
¶ 12 We affirm.