Behavioral Health Agency of Cent. Arizona (BHACA) v. City of Casa Grande

• Decision Date: 19 February 1985
• Docket Number: I-,P,No. 2,CA-CIV,2
• Citation: Behavioral Health Agency of Cent. Arizona (BHACA) v. City of Casa Grande, 708 P.2d 1317, 147 Ariz. 126 (Ariz. App. 1985)
• Parties: BEHAVIORAL HEALTH AGENCY OF CENTRAL ARIZONA (BHACA), a non-profit corporation, Armond Lusignan and Elderly Personslaintiffs/Appellants, v. CITY OF CASA GRANDE, a municipal corporation; Hugh N. Guinn, Mayor of the City of Casa Grande; Katherine Y. Kenyon, William Eddings, Willard S. Russ, Riftin Curtis and Steve Pass, City Council Members of the City of Casa Grande, Defendants/Appellees. 5172.
• Court: Arizona Court of Appeals

Page 1317

708 P.2d 1317

147 Ariz. 126

BEHAVIORAL HEALTH AGENCY OF CENTRAL ARIZONA (BHACA), a non-profit corporation, Armond Lusignan and Elderly Persons I-X, Plaintiffs/Appellants, v. CITY OF CASA GRANDE, a municipal corporation; Hugh N. Guinn, Mayor of the City of Casa Grande; Katherine Y. Kenyon, William Eddings, Willard S. Russ, Riftin Curtis and Steve Pass, City Council Members of the City of Casa Grande, Defendants/Appellees.

No. 2 CA-CIV 5172.

Court of Appeals of Arizona Division 2.

Feb. 19, 1985.

Rehearing Denied April 11, 1985.

Review Denied Oct. 29, 1985.

Cole & O'Neil by Mark A. Higgins, Casa Grande, for plaintiffs/appellants.

Michael F. Beers, City Atty., Casa Grande, for defendants/appellees.

OPINION

HOWARD, Judge.

This is an appeal from the granting of a summary judgment in a zoning matter. The record shows that appellants filed for a conditional use permit to allow them to operate a group home for the elderly in an area in Casa Grande zoned for single-family residences. A hearing was held before the planning and zoning commission, and neighboring property owners appeared, vehemently opposing the granting of the permit. The commission denied the application. The decision of the planning and zoning commission was appealed to the city council. The neighbors again appeared and expressed their opposition. The city council unanimously voted to uphold the commission's decision to deny the permit. Appellants then filed a complaint in the Pinal County Superior Court which appears to be a cross between a special action, an action for declaratory relief, and an action under 42 U.S.C. § 1983. Appellants claim that the city council was arbitrary and capricious in denying the conditional use permit and that the city ordinances are unconstitutional. The record shows the following undisputed facts.

Appellant BHACA is a non-profit corporation designed to render services to persons who have drug problems, persons who have alcohol problems and to elderly persons. Appellants initially applied for a conditional use permit for a group home for juveniles. This application was subsequently withdrawn and later submitted to the city planning department, which recommended approval. However, the planning and zoning commission, after a hearing on the matter, voted to deny it.

Appellants then filed a conditional use permit application on the same property for an elderly group home. The planning and zoning commission again recommended disapproval and a public hearing was held before the city council. According to William Crenshaw, the executive director of BHACA, who spoke at the hearing before the members of the city council, the group home was to provide elderly foster care for up to five elderly persons and would also house two permanent staff members. The clients were to come generally from the Casa Grande area, and although they were not mentally ill they were all in frail physical condition, incapable of independent living, and required 24-hour supervision. Appellants had already leased a house outside the city limits for this elderly foster care program but wanted to also lease a house within the city limits because they had a long waiting list.

The transcript of the hearing before the city council discloses that appellants had created a good deal of animosity in the neighborhood by their failure to talk with the neighbors prior to applying for the conditional use permit for the juvenile facility and prior to applying for the conditional use permit for the elderly group home. This led the neighbors and some members of the city council to be suspicious of the type of home proposed, and some members of the council and the neighborhood believed appellants were not truthful about the proposed use. Their suspicions were reinforced by appellants' refusal to disclose the background of any of the occupants of the proposed group home. It was evident that the neighbors and some members of the city council believed that the home would be occupied by persons with some type of mental or behavioral disorder. The neighbors and some members of the council expressed the thought that they were not opposed to elderly programs but were opposed to group housing in an area zoned for single-family residences. A seeming substantiation of this fear was brought out by one member of the neighborhood who quoted from the Arizona Department of Health Services site report which indicated that appellants were going to develop a new congregate living program in the Casa Grande area where elderly, substance abuse, mental health and other disabled clients would be sharing a living facility.

Appellants contend (1) that the proposed use of the residence as an elderly foster care group home is a permitted use under the City of Casa Grande zoning ordinance; (2) that if the use is not a permitted use, the denial of the conditional use permit was arbitrary, capricious and unreasonable and (3) that if the proposed use is a conditional use rather than a permitted use, the ordinance's classification is arbitrary, capricious, unreasonable and discriminatory, violating appellants' federal and state constitutional rights to equal protection, due process, privacy and freedom of association. We disagree and affirm.

I.

As we originally noted, the action in the superior court, although not entitled a special action nor an action for declaratory judgment, was apparently a combination of both and we shall treat it as such. The zoning ordinance of City of Casa Grande defines the word "family" as follows: "Any number of individuals customarily living together as a single housekeeping unit and using common cooking facilities." (Emphasis added) The term "group home" is also defined in the zoning ordinance as follows:

"A facility located in a residential area providing shelter and/or rehabilitation of up to eight (8) persons, regardless of age, referred by a government agency or duly licensed social service agency, who for various reasons cannot reside in their family home. 24-hour supervision is mandatory and professional supervision and consultation is available to residents of the home. The purpose of a group home is to provide services for persons who do not need the structure of an institution, but do need a transitional environment for future successful reentry into the community as an independent and productive person...."

Although appellants never maintained before the city council below that they were entitled to locate their facility in an area zoned for single-family residences because of the fact that the members of the home constituted a "family" within the meaning of the zoning ordinance, they do so now on appeal. If this were merely a special action, this issue could not have been raised for the first time in the trial court since it was not raised before the zoning agency. See Lippoth v. Zoning Board of Appeals, City of South Portland, 311 A.2d 552 (Me.1973); Moyer v. Board of Zoning Appeals, 233 A.2d 311 (Me.1967); Bourke v. Foster, 343 S.W.2d 208 (Mo.1960); Hickox v. Griffin, 298 N.Y. 365, 83 N.E.2d 836 (1949); Application of Enokay, Inc., 407 Pa. 593, 181 A.2d 842 (1962); Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747 (1949); River Forest State Bank & Trust Company v. Zoning Board of Appeals of Maywood, 34 Ill.App.2d 412, 181 N.E.2d 1 (1961); 101A C.J.S. Zoning and Land Planning § 273, at 807 (1979). However, since we construe this also as an action for declaratory relief, the issue was properly presented in the superior court.

Appellants have cited to us many cases from other jurisdictions where the word "family" is defined in various zoning ordinances which would permit a group home such as that proposed by appellants in Casa Grande. We find none of these cases to be persuasive because of the difference between them and the Casa Grande ordinance. Although the Casa Grande ordinance does not require that the persons living in the house be related by blood or be legally related, it does require that the persons "customarily" live together. The word "customarily" means usually, regularly, habitually, according to the custom, general practice, or usual order of things. Feinberg v. White, 173 F.2d 585 (5th Cir.1949); Jones v. Robertson, 79 Cal.App.2d 813, 180 P.2d 929 (1947). A group of unrelated elderly persons, whose composition will constantly be changing upon the death or serious injury of its members, and their attendants or supervisors, whose composition will also be changed when needed, do not "customarily" live together. The city ordinance does not limit the composition of the household to the nuclear family, thus allowing the premises to be occupied by an extended family and also recognizing the possibility that other persons may be residing in the residence as a family who are not related. However, we do not believe that the city council intended to allow, for example, a group of prisoners, serving a sentence for life without parole, to live in the single-family residential area just because they happened to be sharing common cooking facilities and living together as a single housekeeping unit. Nor do we believe that the city council intended that the single family residential area could be used by a group of permanently, criminally insane persons who might be living together as a single housekeeping unit and using common cooking facilities.

As observed by Judge Andersen in Culp v. City of Seattle, 22 Wash.App. 618, 590 P.2d 1288 (1979):

"The problem with stretching the definition...