Bartolomeo v. Town of Paradise Valley

• Decision Date: 26 May 1981
• Docket Number: CA-CIV,No. 1,1
• Parties: John BARTOLOMEO and Osmond Burton, Jr., Plaintiffs-Appellants, v. The TOWN OF PARADISE VALLEY, an Arizona municipal corporation, Barbara Von Ammon, Wyman Hitchcock, Barry Palmer, Oscar C. Palmer, Sr., Peter Wainwright, Jeffrey Timbanard, John Brock, Jon Bonnell, Mel Kowal, William Simon, William Fulton, John Keenan, J. D. Sanders, and Henry Guthrie, Defendants-Appellees. 4470.
• Court: Arizona Court of Appeals

Page 564

631 P.2d 564

129 Ariz. 409

John BARTOLOMEO and Osmond Burton, Jr., Plaintiffs-Appellants, v. The TOWN OF PARADISE VALLEY, an Arizona municipal corporation, Barbara Von Ammon, Wyman Hitchcock, Barry Palmer, Oscar C. Palmer, Sr., Peter Wainwright, Jeffrey Timbanard, John Brock, Jon Bonnell, Mel Kowal, William Simon, William Fulton, John Keenan, J. D. Sanders, and Henry Guthrie, Defendants-Appellees.

No. 1 CA-CIV 4470.

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

May 26, 1981.

Rehearing Denied June 17, 1981.

Review Denied July 7, 1981.

John G. Gliege, Scottsdale, for plaintiffs-appellants

Romley & Sherk by Kenneth J. Sherk, Phoenix, and John R. Cunningham, Phoenix, for defendants-appellees.

OPINION

EUBANK, Judge.

The main issues raised in this appeal are whether the zoning ordinances of the appellee, Town of Paradise Valley (Town or Town Council), are unconstitutional.

Appellants were denied a special use permit to build a tennis resort by the Town Council. They filed a declaratory judgment action (A.R.S. § 12-1831 et seq.) against the Town in the superior court asking that the ordinances be declared unconstitutional. Following discovery, the Town moved for summary judgment and the trial court granted the Town's motion. The effect of the judgment is to uphold the constitutionality of the Town's zoning ordinances. Appellants appeal from the summary judgment.

At oral argument before this Court, the parties admitted that there are no disputed issues of fact. Thus, the issues raised for our determination involve questions of law. The main facts were stipulated to by the parties in their joint pretrial statement filed with the trial court, as follows:

1. (The Town of) Paradise Valley is a municipal corporation, and the individual defendants (appellees) are residents who are members of the Town Council or Planning and Zoning Commission or were such at the time the events complained of occurred.

2. On October 16, 1961, the Town Council adopted Ordinance No. 10, viz: "Zoning Ordinance of the Town of Paradise Valley, Arizona," and on March 4, 1974, the Town Council adopted Ordinance No. 88 called "The Zoning Ordinance of the Town of Paradise Valley."

3. All nonresidential uses in the Town of Paradise Valley are nonconforming uses or special uses.

4. Plaintiffs' (appellants') property is vacant and situated on the west side of Scottsdale Road (the boundary between Paradise Valley and Scottsdale) with frontage of approximately 1,279 feet and a depth of approximately 1,216 feet, consisting of 40 acres, more or less, and zoned R-43, single-family residential. A portion of the property is within the Indian Bend Wash, (approximately 15 acres) as shown on plate 1 (Town Exhibit 50).

5. Bordering plaintiffs' property on the north, west and east are Camelback Country Club, single-family residences of one acre or more and Scottsdale Road (a heavily travelled 4-lane highway), respectively. Bordering plaintiffs' property on the south is an undeveloped subdivision under single ownership.

6. On October 16, 1973, plaintiffs filed an application for a special use permit, pursuant to the zoning ordinance, to develop a resort hotel and tennis facilities.

7. The application was assigned to a Special Use Permit Subcommittee.

8. Subsequent to the filing of the application for a special use permit, plaintiffs met with the Subcommittee on four separate occasions, during which demands were made for plans, drawings, studies, exhibits and other documentation.

9. The Planning and Zoning Commission required of the plaintiffs the following:

A model of the proposed development; hydrological study; proposal for development of the flood plain; line of sight drawings; evidence of approval of plaintiffs' proposed improvement of floodplain from the United States Army Corps of Engineers and the Maricopa County Flood Control District; economic evidence of the need for this type of resort and tennis facility; building materials samples; comparisons of existing structures for purposes of demonstrating such structures larger than plaintiffs' proposed structure; demographic information showing source of expected membership and users; amount of electrical energy required by air-conditioners to service the buildings; detailed landscaping plans for the proposed project; plans for development of that portion of plaintiffs' property which would be reserved and upon which no construction would occur that would obstruct the flow of floodwater during heavy rainfall; outdoor lighting plans; plans of the water system and lines; location of fire hydrants; disposition of surface water; engineering study for air-conditioning system; market feasibility; aesthetics to fit plan of the Town; and approval of the number of fire hydrant locations from the Rural Fire Department.

Plaintiffs did not provide a model, fire hydrant locations or approval from the Rural Fire Department.

10. The Subcommittee recommended denial of plaintiffs' application for a special use permit to the Planning and Zoning Commission, which then held three public hearings (September 16, October 21 and November 4, 1975 when plaintiffs presented their application and some neighboring residents presented their opposition) and recommended denial to the Town Council, which held a public hearing and denied the application on December 4, 1975.

At the December 4th hearing before the Town Council, appellants' application was denied on the following basis:

Move to deny the application for the Special Use Permit which is before the Council at this time for the Paradise Valley Racquet Club for the following three reasons: first, that the proposed use would not serve the public health, safety or welfare of the Town of Paradise Valley; second, that the applicants have failed to submit in such form as has been prescribed by the Planning and Zoning Commission sufficient and adequate detailed preliminary plans for the uses proposed by the applicants; and for the third grounds that the applicants have failed to file a valid application for a redefinition of the Indian Bend Wash Encroachment Line or to provide sufficient documentation and evidence in support of such a redefinition, and therefore the proposal would violate Section 1024 of the Town Zoning Ordinance since land subject to the proposed Special Use Permit does lie within the encroachment lines, specifically approximately 60% of the land that would be subject to the Special Use Permit does lie within the present encroachment lines, and the Council has found that the applicant has not met its burden as provided in subsection 5 of Section 1024 and has failed to show that there is no substantial hazard created by the proposed improvements.

Appellants first contend that the zoning ordinances of the Town classifying all land in the Town in residential large-lot (R-43) zone is unconstitutional. No direct authority in support of their contention is cited. Instead, they rely on A.R.S. § 9-462.01.A.1, and Exton Quarries v. The Zoning Board of Adjustment of West Whiteland Township, 425 Pa. 43, 228 A.2d 169 (1967). Appellants also contend that they have met their burden of proof demonstrating that the Town's zoning ordinance is unconstitutional. We disagree.

First, we disagree because A.R.S. § 9-462.01.A.1 is a permissive statute. It provides that the legislative body of the Town may enact ordinances, "Regulating the use of buildings, structures and land as between agriculture, residence, industries, business and other purposes." The statute does not require, or even suggest, that any or all of these zones must be enacted by the town. Compare A.R.S. § 9-463.01. Reading the statute as a whole, it is clear that the legislature intended to leave these legislative questions for the Town to decide under its police powers. City of Phoenix v. Oglesby, 112 Ariz. 64, 65, 537 P.2d 934, 935 (1975). M. R. Schroeder, Public Regulation of Private Land Use in Arizona: An Analysis of its Scope and Potential, Part 1, Ariz.St.L.J. (Vol. 1973 No. 4).

Second, we disagree because Exton Quarries does not directly support appellants' contention. The court there held, that since Pennsylvania was a strict construction state where zoning is concerned, the remote-small (pop. 100) town of West Whiteland could not ban quarrying. We do not find the case persuasive. Cases on both sides of the issue, however, are collected in Annot. 54 A.L.R.3d 1282, Validity of Ordinance Zoning Entire Municipality for Residential Use. Cases cited upholding such limited residential zoning classification are Cadoux v. Planning and Zoning Commission of Town of Weston, 162 Conn. 425, 294 A.2d 582, 54 A.L.R.3d 1278 (1972), cert. denied, 408 U.S. 924, 92 S.Ct. 2496, 33 L.Ed.2d 335 (1972); McDermott v. Calverton Park, 454 S.W.2d 577 (1970,Mo.); Gautier v. Jupiter Island, 142 So.2d 321 (1962, Fla.App.); Blank v. Lake Clarke Shores, 161 So.2d 683 (1964, Fla.App.); Richlawn v. McMakin, 313 Ky. 265, 230 S.W.2d 902 (1960); cert. dismissed, 340 U.S. 945, 71 S.Ct. 531, 95 L.Ed. 682 (1951); Connor v. Chanhassen, 249 Minn. 205, 81 N.W.2d 789 (1957); Old Westbury v. Foster, 193 Misc. 47, 83 N.Y.S.2d 148 (1948); Gignoux v. Kings Point, 199 Misc. 485, 99 N.Y.S.2d 280 (1950); Nehrbas v. Lloyd Harbor, 147 N.Y.S.2d 738 (1955), modified on other grounds, 1 App.Div.2d 1034, 152 N.Y.S.2d 28 (1956), aff'd on other grounds, 2 N.Y.2d 190, 159 N.Y.S.2d 145, 140 N.E.2d 241 (1957); Gardner v. LeBoeuf, 24 Misc.2d 511, 204 N.Y.S.2d 468 (1960), aff'd, 15 App.Div.2d 815, 226 N.Y.S.2d 678 (1962); Valley View Village, Inc. v. Proffett, 221 F.2d 412 (6th Cir. 1955) (applying Ohio law); Los Altos Hills v. Adobe Creek Properties, Inc., 32 Cal.App.3d 488, 108 Cal.Rptr. 271 (1973). Cases cited opposed to such classification are Gundersen v. Bingham Farms, 372 Mich. 352, 126 N.W.2d 715 (1964); Dowsey v. Kensington, 257 N.Y. 221, 177 N.E. 427, 86 A.L.R. 642 (1931); Hobart v. Collier, 3 Wis.2d 182, 87 N.W.2d 868 (1958)....