Arkules v. Board of Adjustment of Town of Paradise Valley, 2
| Decision Date | 30 April 1986 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 728 P.2d 657,151 Ariz. 438 |
| Parties | Bernard ARKULES and Barbara Arkules, Plaintiffs/Appellants, v. BOARD OF ADJUSTMENT OF the TOWN OF PARADISE VALLEY and Sam DeMuro, Defendants/Appellees. 5679. |
| Court | Arizona Court of Appeals |
Sam DeMuro petitioned the Board of Adjustment of the Town of Paradise Valley for a variance from a building regulation which would require his house to blend with the mountain background and to be made from materials or colors which would not unduly reflect light. The Board granted the variance, and Bernard and Barbara Arkules filed a special action in the superior court seeking reversal of the Board's decision for the following reasons: 1) the notice of the Board's hearing on the variance was defective; 2) the Board was prohibited by its own rules and regulations and by statute from granting a variance not pertaining to the real property and its use and in doing so exceeded its jurisdiction; and 3) the reasons given for permitting the color change were neither a "special circumstance" nor "demonstrable hardship" relating to the real property as those terms were defined by statute and by the Board's rules and regulations.
All parties requested summary judgment alleging the dispositive facts upon which the court could render judgment were not in dispute. The superior court granted summary judgment in favor of DeMuro, the Board and the Town of Paradise Valley, determining that the Board substantially complied with lawful notice requirements for a variance hearing and that the Board's consideration of the request for variance and its decision were neither arbitrary, capricious nor an abuse of discretion. The court also denied DeMuro's motion to dismiss for lack of jurisdiction.
We affirm the judgment of the superior court finding substantial compliance with the notice requirements and that it had jurisdiction to hear the special action. We reverse that portion of the judgment holding the decision to grant the variance was not arbitrary or capricious and was lawfully granted.
The Board of Adjustment derives its powers from A.R.S. § 9-462.06, the statute under which it is created. The provisions of § 9-462.06 grant the Board certain specific powers, most of which are mandatory. In addition, there are certain actions the Board may not take:
H. A board of adjustment may not:
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2. Grant a variance if the special circumstances applicable to the property are self-imposed by the property owner.
Courts have uniformly held that a board of adjustment has no powers except those granted by the statutes creating it, Applestein v. Osborne, 156 Md. 40, 143 A. 666 (1928); its power is restricted to that granted by the zoning ordinance in accordance with the statute. Carini v. Zoning Board of Appeals of the Town of West Hartford, 164 Conn. 169, 319 A.2d 390 (1972), cert. denied, 414 U.S. 831, 94 S.Ct. 64, 38 L.Ed.2d 66 (1973); Bora v. Zoning Board of Appeals of the Town of Norwalk, 161 Conn. 297, 288 A.2d 89 (1972). The Board must act in accordance with the law or it is without jurisdiction. See Denning v. County of Maui, 52 Hawaii 653, 485 P.2d 1048 (1971).
Courts have termed any decision made by a board of adjustment beyond these restrictive powers as "ultra vires and void," Applestein v. Osborne, 143 A. at 669, a nullity and of no force and effect, Kaufman v. City of Glen Cove, 45 N.Y.S.2d 53, 180 Misc. 349 (1943); Noonan v. Zoning Board of Review of Town of Barrington, 90 R.I. 466, 159 A.2d 606 (1960); DiPalma v. Zoning Board of Review of Town of Bristol, 72 R.I. 286, 50 A.2d 779 (1947), and "legally meaningless," Westbury Hebrew Congregation, Inc. v. Downer, 302 N.Y.S.2d 923, 926, 59 Misc.2d 387 (1969).
It is well settled in Arizona that the powers and duties of an administrative agency are measured and limited by the statute creating it. Ayala v. Hill, 136 Ariz. 88, 664 P.2d 238 (App.1983). Under the provisions of A.R.S. § 12-902(B), an appeal from an administrative agency may be heard even though untimely to question the agency's personal or subject matter jurisdiction in a particular case. The Board of Adjustment, though structured much like an administrative agency, acts in a quasi-judicial capacity. See Hill Homeowners' Association v. Zoning Board of Adjustment, 129 N.J.Super. 170, 322 A.2d 501 (App.1974). Indeed, Arkules appeared in superior court by special action, formerly a writ of certiorari brought in order to "control acts beyond the jurisdiction of another body ... [and] to review ... the judicial functions of a lower tribunal." Book Cellar, Inc. v. City of Phoenix, 139 Ariz. 332, 335, 678 P.2d 517, 520 (App.1983).
Therefore, the effect of the void decision by the Board of Adjustment is the same as that of any void decision by a court: "the mere lapse of time does not bar an attack on a void judgment." Wells v. Valley National Bank of Arizona, 109 Ariz. 345, 347, 509 P.2d 615, 617 (1973). We have held that a void judgment does not acquire validity because of laches. International Glass & Mirror, Inc. v. Banco Gan. Y Agr. S.A., 25 Ariz.App. 604, 545 P.2d 452 (1976). Statutes of limitation or rules of court are not applicable to void judgments. Preston v. Denkins, 94 Ariz. 214, 382 P.2d 686 (1963). Therefore, Arkules was not bound by the 30-day limit of A.R.S. § 9-462.06(J). This special action brought within a reasonable time of learning of the variance was timely, and the court properly denied DeMuro's motion to dismiss for lack of jurisdiction.
The Board published its notice of hearing which appeared in the Scottsdale Daily Progress and listed the address of the property affected as "6396 North Mummy Mountain Road." The correct address was 6936. Anyone interested, by the exercise of reasonable diligence, could have ascertained whether his property would be affected and in what manner, since the notice named the applicant, the correct street and the specific nature of the request (a color variance). North Mummy Mountain Road is only three blocks long with only five houses. Arkules live immediately adjacent to the property for which the color variance was granted and, at the time the notice was published and posted, they lived across the street from the applicant DeMuro. The notice was adequate. Chess v. Pima County, 126 Ariz. 233, 613 P.2d 1289 (App.1980); East Camelback Home Owners' Association v. Arizona F N & P, 18 Ariz.App. 121, 500 P.2d 906 (1972).
In addition to the published notice, notices were posted on and near the subject property in compliance with A.R.S. § 9-462.06(F). The notices were posted both on the building site and at the nearest public intersection, North Mummy Mountain Road and Arroyo Road. The Board's departure in this case from its custom of mailing notices to all property owners does not render the notice invalid. There is no statute or rule which requires mailing of the notice to adjoining property owners. We agree with the trial court that the Board substantially complied with notice requirements and affirm.
This court must allow the Board's decision to stand if there is some credible evidence to support it. Ivancovich v. City of Tucson Board of Adjustment, 22 Ariz.App. 530, 529 P.2d 242 (1974); Sevilla v. Sweat, 9 Ariz.App. 183, 450 P.2d 424 (1969). We are not prohibited from reviewing the evidence presented by the record filed in the superior court, and we may substitute our opinion for that of the superior court since we are reviewing the same record. Sevilla v. Sweat, supra. The minutes of the hearing quoted below are insufficient to grant the Board authority to permit the variance.
The statements which MR. DeMURO had given as the basis for his...
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