Opinion
No. 1 CA-CV 15-0282
12-22-2016
KATHERINE SPRAGUE, a taxpayer and an abutting property owner, Plaintiff/Appellant, v. CITY OF PHOENIX BOARD OF ADJUSTMENT; TRG INDIAN SCHOOL, LP, Defendants/Appellees.
COUNSEL Katherine Sprague, Phoenix Plaintiff/Appellant Phoenix City Attorney's Office, Phoenix By Brad Holm, Robert A. Hyde, Paul M. Li Counsel for Defendant/Appellee City of Phoenix Board of Adjustment Berry Riddell LLC, Scottsdale By Martin A. Aronson, Michael W. Zimmerman Counsel for Defendant/Appellee TRG Indian School, LP
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. LC2014-000574-001
The Honorable John Christian Rea, Judge
AFFIRMED
COUNSEL Katherine Sprague, Phoenix
Plaintiff/Appellant Phoenix City Attorney's Office, Phoenix
By Brad Holm, Robert A. Hyde, Paul M. Li
Counsel for Defendant/Appellee City of Phoenix Board of Adjustment Berry Riddell LLC, Scottsdale
By Martin A. Aronson, Michael W. Zimmerman
Counsel for Defendant/Appellee TRG Indian School, LP
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Andrew W. Gould and Judge Patricia A. Orozco joined. SWANN, Judge:
¶1 The City of Phoenix Board of Adjustment ("the Board") approved a developer's request for zoning ordinance variances over a neighbor's objection, and the superior court denied the neighbor's request for relief. We affirm. The record reveals evidence sufficient to support the Board's decision under the standards prescribed by A.R.S. § 9-462.06 and the Zoning Ordinance of the City of Phoenix ("Zoning Ordinance"). The record shows that the property's developable area was unusually small as the result of characteristics beyond the developer's control. The Board reasonably concluded that the variances were necessary and would not cause material detriment to others.
FACTS AND PROCEDURAL HISTORY
¶2 PBB-TRG Acquisition Company, LLC, acquired title to several contiguous but variously zoned parcels at the northeast corner of Indian School Road and 19th Street in the City of Phoenix, with the goal of developing the seven-acre property as a multifamily housing complex. To that end, PBB-TRG sought to rezone the parcels.
We grant PBB-TRG's motion to substitute its successor in interest, TRG Indian School, LP, as appellee. We amend our caption accordingly, but, for convenience, refer to PBB-TRG throughout our decision. We deny the appellant's motion to add a different entity as appellee.
¶3 PBB-TRG initially sought R-5 rezoning. The City Planning Commission approved the Camelback East Village Planning Committee's recommendation to deny the R-5 request and grant R-4A status. But to accommodate neighbors' concerns about the development's density limits, PBB-TRG agreed to pursue R-4 zoning instead. PBB-TRG then applied for multiple R-4 variances. PBB-TRG sought to: (1) reduce the perimeter-setback requirement on three sides from twenty feet to, respectively, zero feet, zero feet, and twenty feet; (2) reduce the adjacent-parcel-setback requirement from ten feet to five feet; (3) reduce the building-setback requirement from one hundred and seventy feet to sixty-seven feet; (4) reduce the open-space requirement from approximately ten percent to five percent; and (5) increase the maximum perimeter wall height from six feet to eight feet. All but the first-listed variance would not have been necessary under an R-4A classification.
R-5 zoning refers to a particular zoning district for multifamily residences. Zoning Ordinance § 618. Other multifamily-residence zoning districts include R-4A and R-4. Zoning Ordinance §§ 619, 617. Different standards apply to each type of district. See Zoning Ordinance §§ 617-19.
¶4 At a public hearing on the variance requests, PBB-TRG's counsel recounted PBB-TRG's zoning-classification compromise. Counsel described the property as an irregularly shaped, underutilized infill property consisting of a hodgepodge of zoning classifications; he also characterized the property as "small" in the written variance application. Counsel further stated that the property is bounded by four frontage streets instead of the usual one or two, that two of the frontage streets are functionally non-frontage streets, and that greater setbacks are required on frontage streets. Counsel finally stated that one of the streets had an excess right-of-way and the streets department had agreed to allow PBB-TRG to landscape that area.
¶5 Katherine Sprague, a neighborhood resident and the chair of a newly formed neighborhood association, spoke in opposition to the variances and received permission to submit documents after the close of the hearing. Several other neighbors appeared and stated their support for the variances, as did a representative of the Neighborhood Coalition of Greater Phoenix.
¶6 The zoning administration hearing officer approved the variance requests, accepting the majority of the requests as filed and accepting the open-space request as modified to six percent. Sprague appealed to the Board. She was again given an opportunity to speak and submit documents. The Board upheld the hearing officer's decision and declined Sprague's request that it reconsider.
¶7 Sprague then filed a special action complaint in the superior court. She initially challenged all of the variances but later stated that she "really [did]n't have a problem" with the wall-height variance.
¶8 The court denied relief, concluding that Sprague "failed to show that the agency's decision was arbitrary or capricious, an abuse of discretion, or legally in error." The court denied Sprague's motion for reconsideration and entered judgment accordingly. Sprague appeals.
DISCUSSION
¶9 We review whether the Board acted arbitrarily, capriciously, or in abuse of its discretion. Pingitore v. Town of Cave Creek, 194 Ariz. 261, 264, ¶ 18 (App. 1998). We consider whether the appellant was afforded due process, see City of Phoenix v. Superior Court (Rosen), 110 Ariz. 155, 158 (1973), and whether the Board's decision is supported by credible evidence, Pingitore, 194 Ariz. at 264, ¶ 18. We do not reweigh the evidence. Mueller v. City of Phoenix, 102 Ariz. 575, 581 (1967).
¶10 As an initial matter, we address Sprague's contention that she was denied due process at the Board hearing because her presentation time was limited. A hearing conducted with undue haste or unfair procedures may violate due process. See City of Phoenix, 110 Ariz. at 158. But that was not the case here. The Board, consistent with its published guidelines, gave Sprague and PBB-TRG ten minutes each to present their cases and gave Sprague five minutes for rebuttal. The Board advised the parties of the time restrictions at the outset of the hearing. When the Board gave Sprague a ninety-second warning, she concluded her remarks and gave no indication that she had more to say. The Board then stated that Sprague's co-appellant could use the remaining twenty-eight seconds of presentation time and any rebuttal time that Sprague wished to share. The co-appellant used the remaining presentation time, and Sprague presented the rebuttal argument. She again gave no indication that she needed additional time, and the Board accepted all of the documents that she provided. We conclude that Sprague was afforded due process.
¶11 We next address Sprague's contention that the Board approved the variances based on insufficient evidence and misapplication of the law. Variances are deviations from the zoning law. Zoning Ordinance § 202; see also Variance, Black's Law Dictionary 1588 (8th ed. 2004). To maintain the integrity of the zoning law, variances should be granted "sparingly and under exceptional circumstances" only. Ivancovich v. City of Tucson Board of Adjustment, 22 Ariz. App. 530, 535 (1974). Consistent with A.R.S. § 9-462.06(G)(2) and (H)(2), the Board may not approve a variance unless: (1) there are special circumstances or conditions applying to the land which do not apply to other properties in the district; (2) the special circumstances were not created by the owner or applicant; (3) the variance is necessary for the preservation and enjoyment of substantial property rights; and (4) the variance will not be materially detrimental to persons residing or working in the vicinity, to adjacent property, to the neighborhood, or to the public welfare in general. Zoning Ordinance § 307(A)(9).
¶12 "Special circumstances or conditions" means "hardship." Burns v. SPA Auto., Ltd., 156 Ariz. 503, 505 (App. 1988) (construing City of Scottsdale zoning ordinance). The analysis looks to whether "special circumstances applicable to the property, including its size, shape, topography, location, or surroundings, [would cause] the strict application of the zoning ordinance . . . [to] deprive the property of privileges enjoyed by other property of the same classification in the same zoning district." A.R.S. § 9-462.06(G)(2). "A hardship which has been wilfully and intentionally created does not justify the granting of a variance." Burns, 156 Ariz. at 505. The hardship must instead "arise directly out of the application of the ordinance to circumstances or conditions beyond the [owner's] control," necessitating a zoning deviation that "can be enjoyed not only by the present owner but by all subsequent owners." Id. (citation omitted).
¶13 Hardship is therefore assessed based on the particular property's characteristics, not on abstract good cause, see Haynes v. City of Tucson, 162 Ariz. 509, 510-11 (App. 1989), the applicant's personal preferences or needs, see, e.g., Burns, 156 Ariz. at 505, or the fact that other properties have obtained variances, see Haynes, 162 Ariz. at 511. An owner's mere desire to satisfy a personal aesthetic cannot support a variance. See Arkules v. Board of Adjustment of the Town of Paradise Valley, 151 Ariz. 438, 441-42 (App. 1986) (holding that a desire to live in a white residence in area where building regulations required residences to blend with mountain background and not unduly reflect light was personal preference, not hardship). Similarly, an owner's desire to operate a certain type of business, or to operate a business in a more profitable manner, is a self-imposed hardship that cannot support a variance. See Pawn 1st, LLC v. City of Phoenix, 239 Ariz. 539, 562, ¶¶ 2, 27 (App. 2016) (desire to operate pawn shop with reduced exterior-wall setback was self-imposed hardship caused by owner "selecting this particular property to use as a pawn shop"); Haynes, 162 Ariz. at 510-11 (desire to operate large restaurant, which would cause construction of fewer parking spaces than minimum required by zoning code, did not support variance); Burns, 156 Ariz. at 505 (decision to operate multi-manufacturer car dealership, which required construction of sign larger than that authorized by zoning code, was self-inflicted). "Higher economic return can always be expected if zoning restrictions are waived. If that were a 'special circumstance,' everyone would be entitled to a variance." Haynes, 162 Ariz. at 510.
¶14 PBB-TRG and the City assert that sufficient evidence supported the Board's conclusion that the property was burdened by hardship beyond PBB-TRG's control. We agree, but we reject much of the appellees' reasoning.
¶15 First, we reject PBB-TRG and the City's contention that the property's patchwork of zoning classifications created hardship. PBB-TRG did not seek variances from the multiple zoning classifications — it sought variances from the expected R-4 rezoning. Any previous or presumably previous zoning classifications were immaterial to the inquiry.
¶16 We also reject PBB-TRG and the City's reliance on the fact that the majority of the variance requests were necessitated by PBB-TRG's willingness to accommodate neighbors' concerns by pursuing rezoning under a more-restrictive classification than it might have been awarded. PBB-TRG's decision to compromise on the zoning classification, whether motivated by profit or altruism, is the definition of a self-inflicted hardship. PBB-TRG elected to seek R-4 zoning, and was entitled to R-4 variances only upon showing that, because of the property's characteristics, strict application of the R-4 restrictions would deprive the property of significant rights enjoyed by other R-4 properties in the district. PBB-TRG could not create its own hybrid zoning classification as a matter of right.
¶17 We further reject PBB-TRG and the City's contention that the property's infill nature constituted hardship sufficient to support the variances. Neither Title 9, Chapter 4, Article 6.1 of the Arizona Revised Statutes nor the Zoning Ordinance define "infill," but the hearing officer cited a City Council report describing the term as "a development that is [to be] constructed within a built up area on vacant or underutilized property or between existing buildings." Assuming without deciding that PBB-TRG's property is infill, evidence of vacancy or underutilization goes to a property's current use, not its characteristics. And the fact that a property is between existing buildings cannot support a variance in the absence of a further showing that the arrangement is in some way unusual. No such showing was made here.
¶18 We hold, however, that the evidence regarding other aspects of the property's surroundings and nature was sufficient to support the Board's approval of the variances. With the exception of the wall-height variance (to which Sprague eventually waived any objection), all of the variances are aimed at increasing the property's developable area. PBB-TRG's counsel represented that the property is small, and that it is irregularly shaped because neighboring "out parcels" were not for sale. Counsel further represented that four frontage streets surround the property, and that this is an "unusual" situation. He also stated that two of the frontage streets function as non-frontage streets. Sprague does not dispute any of those assertions. The larger setbacks occasioned by the street designations atypically constricted the property's already modest developable area. On that ground alone, the Board reasonably could find that the property was burdened by a non-self-imposed hardship and, further, that the variances were necessary for the preservation and enjoyment of substantial property rights. We emphasize that our conclusion is based not on the detrimental effect that disallowance of the variances would have on PBB-TRG's profitability, see Haynes, 162 Ariz. at 510, but on the effect that disallowance of the variances would have on the property as compared to other similarly situated properties. We also emphasize that though PBB-TRG relies on the hearing officer's observation that variances are commonly granted in three- to four-frontage-street situations, reliance on other properties' variances is misplaced. See id. at 511.
Sprague contends that the record of the administrative proceedings, as submitted to the superior court, was improperly altered by the addition of PowerPoint slides that were not presented to the Board. But the transcript of the proceedings before the hearing officer supports the inference that PBB-TRG's counsel used PowerPoint slides, and the Board included the slides in its designated record. We discern no error in the superior court's order denying Sprague's motion to strike the slides, and we deny her motion for sanctions on appeal.
Sprague also contends that the record filed with the superior court omitted certain documents that were before the Board. She raised the same issue in the superior court but she never complied with the court's direction to address the matter in her preoralargument opening brief.
Sprague contends that PBB-TRG and the hearing officer misunderstood the perimeter-setback variance to be from a five- or ten-foot standard instead of from a twenty-foot standard. PBB-TRG's variance narrative and the hearing officer's decision belie that contention. --------
¶19 With respect to the remaining variance criterion, the evidence reasonably supports the Board's determination that the variances would cause no material detriment to people residing or working in the area, to adjacent properties, to the neighborhood, or to the public welfare in general. We reject PBB-TRG and the City's contention that this element was met because the variances would facilitate construction of a new residential project for an existing mix of conflicting uses, including a mobile home park. PBB-TRG presented no evidence that it or any other owner would be unable to develop the property for R-4 use absent the variances. But PBB-TRG did present evidence that one of the frontage streets had an excess right-of-way that PBB-TRG had received permission to landscape, and the Board reasonably could conclude that the landscaping would mitigate the effect of the reduced setback- and open-space-requirements. Additionally, several neighbors and a member of a neighborhood coalition stated their support for the variances. Under our deferential standard of review, we find sufficient evidence to support the variances under the law.
CONCLUSION
¶20 For the reasons set forth above, we affirm the superior court's ruling upholding the variances.