February 2015 Updates

Southern Arizona Public Works has not had a new post in some time; this is reflective of the author's increased burden running a successful new law firm.  My clients experienced some great successes in 2014, and I will continue providing dedicated and thorough service through the rest of the year. 

The United States Supreme Court heard oral argument in an Arizona-based case, Reed v. Town of Gilbert, on January 12, 2015. The case involves First Amendment issues relating to speech and religion centered around the Town of Gilbert's sign code. Full coverage of the case appears in many places; one of my favorites is scotusblog.com. 

As a lawyer who defends the property rights of private citizens against government intrusion, one issue of major concern to me is the public's access to the court system and government in general. I was majorly disturbed recently when I discovered the cost of appealing the decision of a zoning official in Pima County to the Pima County Board of Adjustment is $1,042. Appealing these decisions to the Board of Adjustment is a necessary step to eventually receiving a full hearing in Superior Court, so the fee is unavoidable in practice.  This chart shows how Pima County's fees compare to those in other Southern Arizona counties:

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One non-Pima-County-planning-and-zoning official to whom I spoke stated he would like to see these fees increase for his county, so there is some room to argue Pima County is more appropriately charging user fees to the customers for government services. As you can see, though, Pima County's fee is higher than double any other County and is more than three times that of Maricopa County.

A cynic might think this is why Pima County Administrator Chuck Huckleberry can seem so cavalier regarding the zoning rights of county property owners; it is a good bet most people can't afford to challenge him. 

Third Quarter Pima County Planning and Zoning Boards Update

This is a now-quarterly report of action taken at the meetings of the Pima County Board of Adjustment, Hearing Administrator, Design Review Committee, and Planning and Zoning Commission. This report also includes important Pima County Board of Supervisors actions relating to land use and zoning. This previous post explains the functions of each county board.

• Board of Adjustment
  The District One Board of Adjustment and the District Three Board of Adjustment heard variance requests to allow permanent occupancy in guest houses. The District Four Board of Adjustment heard two cases to reduce the minimum lot size required in the SR zone, which is somewhat unusual.  District Five still has not posted anything online since March. 
• Hearing Administrator
  The Hearing Administrator approved an interesting request for an 18-foot communication tower to relay internet service in a rural area. The Hearing Administrator recommended denial of an application for a Type II conditional use permit for the planned Bike Ranch near Old Spanish Trail and Escalante. 
• Design Review Committee (DRC)
  Nothing of note (at least that has been posted online) has occurred at the DRC.
• Planning and Zoning Commission
  On July 30, 2014, the P&Z Commission voted to recommend an amendment to the Major Streets and Scenic Routes Plan that lays the groundwork for an eventual limited-access highway connecting I-10 and I-19 from E. Old Vail Connection Road to E. Pima Mine Road. The amendment, if the Pima County Board of Supervisors adopts it, could be construed as a regulatory taking because it expands the future right-of-way width from 150 feet to 400 feet in some instances, restricting development options along valuable frontage property. 

The Pima County Board of Supervisors voted on September 16, 2014 to continue until the meeting on October 7, 2014, a vote on the recommended amendment to the Major Streets and Scenic Routes Plan.

Navigating the Bureaucracy: Pima County Zoning and Planning Boards

Bureaucracy is a fact of life when dealing with land use, zoning, and planning issues. Whether you would like to modify your family residence or plan a large subdivision, governmental entities will want to have input into that process. Most of the time, development and construction projects are permitted at the department level, through Pima County Development Services, without the need for public hearings. When public hearings are required, your project might appear in front of one of these boards:

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Pima County Board of Supervisors Districts

• Board of Adjustment: The Board of Adjustment hears requests for variances, which are requests for permission to not conform with the zoning code in some way, i.e., if a property owner wished to create an addition to her house that would not be possible without encroaching into the mandated setback. The Board of Adjustment also hears requests for interpretations of the zoning code or appeals from a determination by the Zoning Inspector. Finally, this board has the power to grant temporary use permits, allowing the use of property beyond its permitted use under the zoning code for a limited time. The Pima County Board of Adjustment has five districts, each corresponding to the district of a Pima County Supervisor. 

• Hearing Administrator: The Hearing Administrator conducts public hearings on applications for conditional use permits. Conditional use permits (or CUPs) allow uses of property that are typically harmonious with the surrounding development but require closer examination before the use is permitted.
• Design Review Committee: The Design Review Committee (DRC) reviews proposed developments to ensure they meet the design standards for particular zones, such as an overlay zone or a historic district. The DRC can grant exceptions in addition to its compliance review duties.
• Planning and Zoning Commission: The Planning and Zoning Commission directly advises the Pima County Board of Supervisors. Rezoning requests are heard before this commission prior to a vote by the full Board of Supervisors. 

These four public bodies wield tremendous power and influence, and their approval or disapproval can make or break a project. The decisions of these boards have also a big impact on the larger community, so I will begin to compile a "Monthly Pima County Planning and Zoning Boards Update." Check back in this space for details of interesting projects and proposals affecting real estate in Pima County.

Benson Mobile Home Community Prevails Against the City of Benson in Arizona Supreme Court on Zoning Issue

Good legal disputes are sometimes more entertaining than bad soap operas. Villains and heroes antagonize each other over ages, and, at the end, nobody is really sure what started the dispute in the first place. All involved are left yearning for a portal back to sunnier days when rancor was not so entrenched, so foreordained - but rather peaceably negotiable.

Such is the saga of Stagecoach Trails MHC, L.L.C. v. City of Benson. The Arizona Supreme Court's decision represents the climax of the story. The dispute started as follows.

 Some time prior to 2010, a property owner adjacent to Stagecoach Trails, a 55+ manufactured home community (MHC) in Benson, Arizona, complained about the size of a particular manufactured home (MH) within Stagecoach Trails. The ire of the great beast thus was provoked. When Stagecoach Trails, in 2010, applied for a permit to install a new MH on Lot 27 (not the original lot that prompted the neighbor's complaint), the City denied the permit because the City had decided all new MH installations should conform to the zoning code.

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The Stagecoach Trails Manufactured Home Community in Benson, Arizona. The location of Lot 27, the lot in dispute in the legal battle, is not shown.

The City's interpretation offended the owner of Stagecoach Trails, who claimed the property had been used as a MHC since the 60s. Goodwill, if it ever existed between the City and the owner at all, surely was further strained when the Benson mayor attempted to work things out mano-a-mano only to have that conversation reportedly tape recorded for future use. 

The City thus denied Stagecoach Trails's application for a permit, and Stagecoach Trails brought suit after appealing the permit denial to the City's Board of Adjustment. The critical issue was whether the property as a whole was a nonconforming use immune from the City's application of the zoning code or whether, as the City contended, each MH lot was an individual nonconforming use. If the City's interpretation was correct, each lot would lose its nonconforming status when a manufactured home was removed from a lot. If Stagecoach Trails's interpretation was correct, as long as the entire property remained in use as a MHC, individual MH units could be switched in and out without affecting the nonconforming status of the overall property.

Why was the Arizona Supreme Court needed to weigh in on such a simple issue? It wasn't. By the time the case got to the Supreme Court, the kerfuffle over the nonconforming status of the property was a secondary issue because the Court of Appeals had determined Stagecoach Trails had not made the prerequisite exhaustion of its administrative remedies.

Before a court has jurisdiction over a permit dispute, the permit applicant must "exhaust" his or her "administrative remedies" - in essence, the applicant must follow the appeal process of the body from whom he or she is requesting a permit. The idea is that governing bodies must be allowed the opportunity to correct their mistakes before valuable judicial resources are spent resolving the issue. In practice, these Board of Adjustment appeals are Grand-Guignol masquerades.  

During the time the matter was in Cochise County Superior Court, the City of Benson's zoning administrator had been busy. Once the City learned the superior court judge was not likely to see things the City's way (which, in the mind of the City Attorney, could only be the result of rank bias against the City), the zoning administrator issued multiple follow-up letters to Stagecoach Trails crafting various new reasons why Stagecoach Trails would never, ever receive a zoning permit. See video, at right. 

Stagecoach Trails's lawyers dutifully amended and refiled their court documents in response to each letter, but the Court of Appeals found that the new explanations from the zoning administrator required new appeals to the City of Benson Board of Adjustment in order for Stagecoach Trails to satisfy the "administrative exhaustion" requirement.

Enter the Supreme Court, which astutely holds that a governmental body does not have the power to create a never-ending process of review by continuing to modify its objections to a permit application. This levels the playing field somewhat for property owners because the opinion empowers common sense over bureaucratic nonsense. As long as a property owner makes a valid claim in the first instance that addresses every angle a city or county conjures up or could conjure up to deny a permit, the property owner need not mount futile attempts to reassert his or her claim successively each time the city or county evokes a new barrier.

The denouement is nearly as entertaining. After receiving the case back from the Supreme Court, the Court of Appeals, no doubt feeling upbraided, sent the matter back to the trial court for further findings rather than disposing of the case.

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The City of Benson could possibly appeal again whatever final ruling the trial court makes, but: 1. The trial court already ruled in favor of Stagecoach Trails once, and 2. The city attorney responsible for the City of Benson's legal strategy has been relieved of his post.

Unfortunately for Stagecoach Trails, the Supreme Court agreed with the Court of Appeals that the City of Benson was not required to pay Stagecoach Trails's attorneys' fees, rumored to be close to $300,000. Congratulations to Mr. John Hinderaker, Ms. Kimberly Demarchi, and Mr. Jeffrey Sklar of Lewis and Roca LLP (now Lewis Roca ‎Rothgerber LLP), who represented Stagecoach Trails. Here's hoping you get paid for your good work.