Arizona Foundation for Neurology and Psychiatry v. Sienerth

• Decision Date: 14 December 1970
• Docket Number: A,CA-CIV,No. 1,1
• Parties: ARIZONA FOUNDATION FOR NEUROLOGY & PSYCHIATRY, an Arizona corporation, dba Camelback Hospital, Phoenix Institute of Neurology & Psychiatry, an Ariz. corp., Board of Adjustmentof the City of Phoenix, Burton M. Apker, Mrs. Julius Citron, Ward J. Derks, Robert A. Shepler, James P. Hussey, George Walsh and Frank Kadish, individully and as Members of Board of Adjustmentppellants, v. M. J. SIENERTH, Superintendent of Building Inspections of the City of Phoenix, Arizona, East Camelback Homeowners Association, an Arizona corporation, Richard W. Peay and Jerry Hirshberg, Appellees. 1782.
• Court: Arizona Court of Appeals

Page 758

477 P.2d 758

13 Ariz.App. 472

ARIZONA FOUNDATION FOR NEUROLOGY & PSYCHIATRY, an Arizona corporation, dba Camelback Hospital, Phoenix Institute of Neurology & Psychiatry, an Ariz. corp., Board of Adjustment No. 1 of the City of Phoenix, Burton M. Apker, Mrs. Julius Citron, Ward J. Derks, Robert A. Shepler, James P. Hussey, George Walsh and Frank Kadish, individully and as Members of Board of Adjustment No. 1, Appellants, v. M. J. SIENERTH, Superintendent of Building Inspections of the City of Phoenix, Arizona, East Camelback Homeowners Association, an Arizona corporation, Richard W. Peay and Jerry Hirshberg, Appellees.

1 CA-CIV 782.

Court of Appeals of Arizona, Division 1, Department A.

Dec. 14, 1970.

Burch, Cracchiolo, Levie & Guyer, by Frank Haze Burch and C. Michael Pierce, Phoenix, for appellants.

Edward P. Reeder, Asst. City Atty., Phoenix, for Board of Adjustment No. 1 and its Members.

Johnson, Shelley, Roberts & Riggs, by J. LaMar Shelley, Mesa, for M. J. Sienerth.

Dushoff, Sacks & Corcoran, by Jay Dushoff and Stephen L. Weiss, Phoenix, for East Camelback Homeowners Assn.

DONOFRIO, Presiding Judge.

This is an appeal from a judgment of the Maricopa County Superior Court which reversed a decision in favor of the appellants made by the Board of Adjustment No. 1 of the City of Phoenix.

For convenience, appellee M. J. Sienerth, the Superintendent of Building Inspections for the City of Phoenix, will hereafter be referred to as Sienerth. Appellee East Camelback Homeowners Association will be referred to as the homeowners and appellant Arizona Foundation for Neurology will be called Camelback Hospital. The Board of Adjustment No. 1 will at times be referred to as the Board.

Sienerth and the homeowners were petitioners in two certiorari actions brought in the Superior Court pursuant to A.R.S. § 9--465, subsec. E to review the Board's decision in Case No. 529--66. In the trial court proceedings Sienerth, whose division of building inspections had, on September 26, 1966, refused to issue Camelback Hospital a building permit to cover expansion of its physical plant, maintained the position that the hospital was first required to obtain a use permit from the Board before a building permit could be issued. The Board's decision after rehearing was rendered May 16, 1967, and corrected June 7, 1967. By a four to one margin the Board decided that a use permit was not required. The Superior Court having found that the basis of the Board's decision was an erroneous interpretation of certain sections of the Phoenix Zoning Ordinance concluded, inter alia, that as a matter of law Camelback Hospital was required to obtain a use permit from the Board prior to the enlargement or extension of its facilities.

The issue we are called upon to decide is whether under the ordinance acquisition by the appellant of a use permit was a prerequisite to its obtaining a building permit for its planned construction.

The first buildings of what is now Camelback Hospital were constructed in 1954 and 1955 in Maricopa County pursuant to use and building permits issued by the County. In 1958 the area occupied by Camelback Hospital was annexed to the City of Phoenix and in 1959 the Phoenix City Council gave the appellants' property its present zoning classification. Under this classification, one-hundred-foot strips lying within the southern and western boundaries, and one-hundred-fifty-foot strips lying within the northern and eastern boundaries of the subject property were zoned R--1 (limited to single-family residences). The balance of the property, the interior portion, was zoned R--5, a 'multiple-family residence, general district' under Section 411 of the Phoenix Zoning Ordinance.

Ordinance No. G--449, referred to herein as the Phoenix Zoning Ordinance, was adopted by the City of Phoenix on December 28, 1961, and made effective January 2, 1962. Appellants and appellees are in agreement as to which sections of this ordinance as it stood prior to amendment are relevant in this appeal. We set forth the three pertinent sections:

§ 411(a)(4) allowed, subject to a use permit, uses of the character of appellants:

'Section 411, Residential R--5 District-Multi-Family Residence, General.

'(a) Permitted uses.

'(4). Hospitals and nursing homes, subject to a use permit. When any hospital or nursing home is used for the treatment and/or care of mental diseases, contagious diseases or alcoholic patients, the building shall be not less than one hundred (100) feet from any side or rear property line.'

§ 107(b)(1) allowed for the continuance of uses established prior to annexation:

' § 107. Enforcement.

'(b) Use permits.

'1. No building or land shall be used where a use permit is specifically required by the terms of this ordinance until a use permit for such use shall have been granted by the board of adjustment. Any use lawfully established prior to enactment of this ordinance or prior to annexation, which use is permitted by this ordinance subject to a use permit, shall be considered as being legally established.'

§ 106(d) governed expansion:

' § 106. Nonconforming uses.

'(d) The physical plant, buildings and land devoted to any use which is permitted under the terms of this ordinance, subject to the securing of a use permit, may be enlarged or extended only after securing a new use permit.'

In issue is the effect of these provisions, taken as a whole, on the appellants' property.

While this case was pending in the trial court, the Phoenix Zoning Ordinance was amended by the adoption of Ordinance G--797. It is apparent from the provisions of the amended sections that they were aimed at uses which parallel that of Camelback Hospital. Appellants, in their briefs, concede that if the amended ordinance is to apply to Camelback Hospital, it could not expand without first obtaining a use permit. It is not, however, conceded that the amended ordinance does apply, and therefore that issue remains before us.

We shall first turn to a consideration of the parties' positions in light of the ordinance as it stood prior to amendment. The parties agree on these three points: (1) that Camelback Hospital was, in the words of § 106(d), a 'use which is permitted under the terms of this ordinance * * *'; (2) that Camelback Hospital did not obtain an original use permit from the City of Phoenix; and (3) that the hospital is exempt from the requirement of obtaining an original use permit by reason of the second sentence of § 107(b)(1). At that point the agreement ends as appellees, agreeing that Camelback Hospital can continue to function without a use permit, contend that an expansion is conditioned upon the securing of a use permit. This position is based upon an interpretation of § 106(d) as applying to uses in the position of appellants. Thus, although under § 107(b)(1) Camelback Hospital is a 'legally established' use, and although the heading of § 106 reads 'Nonconforming uses,' the appellees and the trial court took the view that under § 106(d) Camelback Hospital which, as noted, was exempted from obtaining an original use permit was required to obtain a use permit prior to undertaking its physical expansion. We agree.

According to the appellants' interpretation of § 106(d) the scope of that subsection's coverage is restricted to nonconforming uses. The language in question makes § 106(d) applicable to 'any use which is Permitted under the terms of This ordinance.' (emphasis supplied). Given this language, we believe that it would be a strained interpretation to hold that this subsection applies only to nonconforming uses.

Ordinances, which in a sense are 'local statutes' are to be construed by the same rules that govern construction of statutes. 6 E. McQuillin, Municipal Corporations § 20.39 (3rd ev. rev. vol. 1969). Regarding construction of section headings in the Arizona Revised Statutes, § 1--212 provides:

'* * * headings to sections * * * are supplied for the purpose of convenient reference and do not constitute part of the law.'

As to an ordinance, a similar rule has developed that resort to its title as an aid in determining the correct interpretation will be allowed:

'* * * where the intent is not plain; for where the mind labors to discover the intention of the legislature it seizes everything, even the title, from which aid can be derived.' 6 E. McQuillin, supra, § 20.59 at p. 156.

Were the language of § 106(d) not clear it would then be appropriate to look to the heading of § 106 as an aid, although only a limited aid, in clarifying an ambiguity. Garrison v. Luke, 52 Ariz. 50, 78 P.2d 1120 (1938). We believe, however, that the language of § 106(d) was plain, thus obviating a need to consider the heading of § 106 in arriving at the proper construction of subsection (d) thereof.

Administrative interpretation of a statute should be accorded some weight in arriving at its proper interpretation, and while administrative interpretation is not binding, where it is long continued and the language in question is ambiguous, the court should acquiesce in such administrative interpretation. City of Mesa v. Killingsworth, 96 Ariz. 290, 394 P.2d 410 (1964). In the cases cited by appellants for this proposition, City of Mesa v. Killingsworth, supra; Jenney v. Freight Line v. Arizona Express, Inc., 89 Ariz. 343, 362 P.2d 664 (1961); Long v. Dick, 87 Ariz. 25, 347 P.2d 581 (1959), there was an administrative practice of long standing and uniform interpretation of the statute involved, whereas in the present case the record shows that although four building permits were issued to Camelback Hospital between the period of annexation and commencement of this suit, three of those involved permits which the City agreed would not require a use permit. From these facts it is obvious that we cannot, for construction, purposes, find significant precedent in the administrative interpretation of these sections of the ordinance. Apart from the...