Blanchard v. Show Low Planning
| Decision Date | 25 May 1999 |
| Docket Number | No. 1 CA-CV 98-0325.,1 CA-CV 98-0325. |
| Citation | 993 P.2d 1078,196 Ariz. 114 |
| Parties | William BLANCHARD; Leveta Challis; Veta Cook; Caron Letcher; Carole and Vaughn Thompson, Plaintiffs-Appellants, Cross Appellees, v. SHOW LOW PLANNING AND ZONING COMMISSION; City Of Show Low; Ed Muder, as Planning and Zoning Administrator, Defendants-Appellees, Cross Appellants, John Menhennet, Trustee of the John Menhennet Living Trust; Wal-Mart Stores, Inc., Real Parties in Interest, Defendants-Appellees. |
| Court | Arizona Court of Appeals |
Review Denied November 30, 1999.1
Morrill & Aronson, P.L.C. by Martin A. Aronson, William D. Cleavel, John T. Moshier, Phoenix, Attorneys for Plaintiffs-Appellants, Cross Appellees.
Brown & Brown Law Offices, P.C. by Douglas E. Brown, Michael J. Brown, Pinetop, Attorneys for Defendants-Appellees, Cross Appellants.
Gust Rosenfeld by Keri Lazarus Silvyn, Frank J. Cassidy, Tucson, Attorneys for Real Party in Interest, Defendant-Appellee, Wal-Mart Stores.
Ryley, Carlock & Applewhite, P.A. by Samuel P. Applewhite, III, N. Warner Lee, Phoenix, Attorneys for Real Party in Interest, Defendant-Appellee, John Menhennet.
¶ 1 This case involves the appeal of the City of Show Low's (City) rezoning of a parcel of land to accommodate a Wal-Mart Supercenter Store. The crux of appellant's argument is that the City did not follow proper procedures for rezoning the parcel because it held rezoning hearings and approved a rezoning ordinance before the parcel was annexed, thereby rendering the rezoning void. For the reasons set forth below, we affirm the trial court's finding that the rezoning was valid and reverse only as to the standing of appellant Challis.
¶ 2 On November 4, 1997, the City Council adopted Ordinance 427 approving the annexation of land located in an unincorporated area of Navajo County. Per statute, the annexation did not become effective until thirty days later on December 3, 1997. See Arizona Revised Statutes Annotated (A.R.S.) § 9-471(D) (1996).
¶ 3 In October and November, prior to the effective date of annexation, the City initiated proceedings to rezone a portion of the annexed land from AR-43 agricultural/residential to C-2 general commercial. On October 24, 1997, the City posted and published notice that it would hold a hearing on the issue of rezoning. According to the City, notice was provided "through a display ad in the newspaper, by posting the subject property, and by sending notice to property owners within 300 feet of the subject property."
¶ 4 On November 12, 1997, the City's Planning and Zoning Commission held a public hearing. The hearing was televised on the local cable station. One of the appellants, Carole Thompson, attended the meeting and protested the rezoning plans.
¶ 5 At the November 12 meeting, the Planning and Zoning Commission announced that another hearing would take place before the City Council. That meeting occurred on November 18, 1997. According to the City, notice of this hearing was also "provided through a display ad in the newspaper, posting the subject property, and notice to owners within 300 feet," none of which was statutorily required. See A.R.S. § 9-462.04. This hearing, too, was televised on the local cable channel. According to the City, no one from the public provided any comment at that public hearing.
¶ 6 On December 1, 1997, the City Council voted to adopt Ordinance 428 rezoning to C-2 a portion of the annexed land. Pursuant to statute, the rezoning did not become effective until December 31, 1997, which was after the effective date of annexation. See A.R.S. § 9-462.04(H) (1996). Wal-Mart submitted plans to the City for the proposed construction of a "Super Wal-Mart" store on a portion of the annexed and rezoned property, as well as on a nine-acre parcel that was already zoned C-2.
¶ 7 On March 2, 1998, appellants, Carole and Vaughn Thompson, William Blanchard, LeVeta Challis, Veta Cook, and Caron Letcher, as owners of property located near the annexed parcel or as residents of Show Low, filed a complaint for special action relief in superior court, alleging that the City had "exceeded its jurisdiction by rezoning property before that property had been annexed to the City." Appellants asserted that A.R.S. section 9-471(L) prohibited the initiation of any rezoning procedures prior to the annexation of the subject property.
¶ 8 Because the Planning and Zoning Commission's hearings and vote to rezone and the City Council's vote to adopt the rezoning ordinance all took place prior to the December 3 effective date of the annexation, appellants argued that the rezoning was ineffective. They also argued that the rezoning was invalid because the City failed to give adequate notice to the county pursuant to A.R.S. section 9-462.04(A)(2) and failed to comply with A.R.S. section 9-462.07 (1996). The City and Wal-Mart countered with motions to dismiss, arguing that appellants (1) lacked standing to contest the rezoning and (2) misinterpreted the requirements of the applicable statutes.
¶ 9 The trial court held hearings on April 7 and April 14, 1998, at which, upon stipulation of the parties, the court heard evidence on both the merits of the complaint and the motions to dismiss. The trial court found that the three plaintiffs who owned property closest to the annexed parcel—Carole and Vaughn Thompson (henceforth referred to collectively as "the Thompsons") and LeVeta Challis—had standing to challenge the rezoning, while the other plaintiffs did not. The court also found that the only flaw in the procedures followed by the City was that certain rezoning procedures predated the date of the adoption of the ordinance to annex the parcel. Notwithstanding, because the court further found that the City had substantially complied with the statutory requirements, it concluded that the rezoning was valid.
¶ 10 Appellants have timely appealed. They ask us to reverse the trial court's finding that Blanchard, Cook, and Letcher do not have standing. They also ask us to reverse the court's finding that the rezoning of the parcel was carried out in substantial compliance with the relevant statutes and to order that the parcel remain zoned as AR-43 agricultural/residential. The City, John Menhennet, Trustee of the John Menhennet Living Trust, and Wal-Mart cross-appeal, arguing that the trial court erred in finding that the Thompsons and Challis have standing to challenge the rezoning. We have jurisdiction pursuant to A.R.S. section 12-2101(B).
¶ 11 Because the trial court in considering the motion to dismiss heard evidence extrinsic to the complaint, we treat this motion to dismiss as a motion for summary judgment. See Frey v. Stoneman, 150 Ariz. 106, 109, 722 P.2d 274, 277 (1986)
. We review a grant of summary judgment to determine whether a genuine issue of material fact exists and to determine whether the trial court correctly applied the law. See Matter of Estate of Johnson, 168 Ariz. 108, 109, 811 P.2d 360, 361 (App.1991). In so doing, we view all facts and the reasonable inferences therefrom in the light most favorable to the party against whom the judgment was entered. Prince v. City of Apache Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49 (App.1996). We review the denial of a motion for summary judgment for an abuse of discretion. See Salt River Valley Water Users' Ass'n v. Superior Court, 178 Ariz. 70, 74, 870 P.2d 1166, 1170 (App.1993). We review questions of statutory interpretation de novo. Young v. City of Scottsdale, 193 Ariz. 110, 112, 970 P.2d 942, 944 (App.1998).
¶ 12 The Thompsons own property located diagonally across the Show Low Lake Road/South White Mountain Road intersection approximately 750 feet from the rezoned parcel. Challis owns property approximately 1,875 feet south of the rezoned parcel; Veta Cook resides on Challis's property. William Blanchard and Caron Letcher are City residents, and Letcher also owns and operates a flower shop located approximately three-quarters of a mile north of the rezoned parcel. All of the parties claimed standing because they were either taxpayers or because they owned property either in Show Low or near the rezoned parcel that they alleged would be harmed by the rezoning.
¶ 13 Appellees argued below that all appellants lacked standing to challenge the rezoning. They maintained that taxpayer status alone was not sufficient to confer standing. They further maintained that even the Thompsons and Challis, whose properties were located closest to the rezoned parcel, did not have standing because neither property was adjacent to the parcel and because there was no showing of any particularized harm to either.
¶ 14 The trial court found that the Thompsons and Challis had standing because "the properties of Thompson and Challis are located in such close proximity to the subject property ... that the rezoned use of [the] property will result in specific damages to their properties different [from] and greater than the effects upon the general public." However, the court did not find that any of the other parties had standing.
¶ 15 Appellees argue, and we agree, that mere taxpayer status is insufficient to confer standing on the parties. The cases relied upon by appellants to support this standing argument, Smith v. Graham County Community College Dist., 123 Ariz. 431, 600 P.2d 44 (App.1979), and Ethington v. Wright, 66 Ariz. 382, 189 P.2d 209 (1948), are cases in which taxpayers were found to have sufficient standing to question expenditures of public monies. Because no public funds are at issue in the rezoning of this parcel of land, taxpayer status alone does not confer standing in this case.
¶ 16 Appellees further argue that the trial court erred in finding that the Thompsons and Challis had standing because neither owns property directly adjacent to the rezoned parcel. Appellees do not cite any authority for this...
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