Buckelew v. Town of Parker

• Decision Date: 05 December 1996
• Docket Number: No. 1,CA-CV,1
• Citation: 937 P.2d 368,188 Ariz. 446
• Parties: , 231 Ariz. Adv. Rep. 19 Walter R. BUCKELEW, Plaintiff-Appellant, v. TOWN OF PARKER, acting through its common counsel consisting of Charlene Peterson, Sandy Pierce, Jim Trevino, John Woody, Paul Langseth, Haskell Melton, and Bill Ripberger, real parties in interest; George L. Kruse, Town of Parker Zoning Administrator, and the Town of Parker Zoning Board Of Adjustment consisting of Karl Hartmetz, Conkie Hoover, J.B. McCommon, Chonna Marshall (formerly Amidan), William Coe, Doug Peterson, and Don Hoffman, real parties in interest, Defendants-Appellees. 96-0090.
• Court: Arizona Court of Appeals

Page 368

937 P.2d 368

188 Ariz. 446, 231 Ariz. Adv. Rep. 19

Walter R. BUCKELEW, Plaintiff-Appellant, v. TOWN OF PARKER, acting through its common counsel consisting of Charlene Peterson, Sandy Pierce, Jim Trevino, John Woody, Paul Langseth, Haskell Melton, and Bill Ripberger, real parties in interest; George L. Kruse, Town of Parker Zoning Administrator, and the Town of Parker Zoning Board Of Adjustment consisting of Karl Hartmetz, Conkie Hoover, J.B. McCommon, Chonna Marshall (formerly Amidan), William Coe, Doug Peterson, and Don Hoffman, real parties in interest, Defendants-Appellees.

No. 1 CA-CV 96-0090.

Court of Appeals of Arizona Division 1, Department E.

Dec. 5, 1996.

Review Denied May 20, 1997.

[188 Ariz. 448] R. Glenn Buckelew, Parker, for Appellant.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A. by Lisa M. Sommer, Christopher Robbins, Phoenix, for Appellees.

OPINION

TOCI, Judge.

Plaintiff Walter R. Buckelew sued the Town of Parker, its officials, and employees ("Town") for damages and special action relief to compel the town to abate a zoning violation on property adjacent to his residence. Buckelew alleged that the owner of the adjacent property changed an authorized nonconforming use of the property as a recreational vehicle park ("RV Park") housing temporary residents to an unauthorized use as a mobile home park with permanent residents. Buckelew appeals from the dismissal for lack of standing of his action and the denial of his motion for leave to amend. We conclude that Buckelew alleged special damage sufficient to give him standing, and therefore, we reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

On review, this court assumes the truth of a complaint's allegations and upholds dismissal only if the plaintiff is not entitled to relief under the facts stated in the complaint. Donnelly Constr. Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184, 186, 677 P.2d 1292, 1294 (1984). ¹ We review the following allegations in Buckelew's pleadings under this standard.

In 1977, an RV park in the Town of Parker developed a reputation for providing short-term, seasonal accommodations to tourists and part-year residents. Owners of trailers and recreational vehicles were the primary users of the RV park. The lots surrounding the RV park included one residential parcel and various businesses. In 1983, Buckelew purchased and now lives on the single residential parcel adjacent to the RV park. Uses on the remaining parcels consist of a convenience store, restaurant, and bar.

In approximately May 1985, the Town enacted a new zoning ordinance. Under the ordinance, the entire block containing Buckelew's residence and the RV park were zoned "general commercial." Commercial zoning prohibits residential use of the land, including use as an RV or trailer park. Arizona law and the non-conforming use provisions of the new ordinance, however, allowed Buckelew and the owner of the RV park to continue their existing uses. ² Therefore, the RV park continued to provide primarily short-term, seasonal accommodations for tourists and part-year residents. The vehicles parked there included various recreational vehicles such as travel trailers, pickup campers, and motor homes used for temporary portable housing. This use continued until 1989, when the park was sold.

In 1989, the RV park's new owner allowed mobile homes in the park with year-round occupancy. Although the park's ownership changed again in 1993 and 1994, the successive owners continued this practice and even purchased several mobile home units that they rented to month-to-month tenants. Since 1990, the mobile home park has been almost exclusively occupied by year-round residents.

Buckelew requested that the Town authorities cure the zoning violation on the property. He asserted that because the RV park had changed drastically from its pre-1985 use, that earlier use should be treated as abandoned. Alternatively, he asked that the Town restore the parcel to its pre-1985 use as an RV park for temporary or seasonal residents. After the zoning authorities refused Buckelew's request, he unsuccessfully appealed the Town's decision to the board of adjustment.

Buckelew sought review of the board's denial of relief by filing a complaint for special action pursuant to Ariz.Rev.Stat. Ann. ("A.R.S.") section 9-462.06(K). He also sought damages for violation of both the open meeting laws, A.R.S. section 38-431.07, and his civil rights pursuant to 42 U.S.C. § 1983. Buckelew claimed that he suffered from special damage from the changed use of the RV park in the form of noise, threats of violence, increased litter, health and fire code violations, increased danger of crime, and the destruction of his personal property, and thus that he had standing to sue.

After the Town moved to dismiss the complaint, asserting that Buckelew suffered the same damage as all of the other neighboring landowners, Buckelew attempted to amend his complaint to set forth his special damage in greater detail. The trial court, however, denied the motion to amend and granted the Town's motion to dismiss.

The court also denied Buckelew's motion for reconsideration, finding the amendment futile because it merely described the same damage in greater detail and failed to allege special damage. On its own motion, the trial court concluded that because Buckelew lacked standing in the zoning matter, he lacked standing to pursue claims for violations of both the open meeting and civil rights laws.

II. DISCUSSION

A. Denial of Motion For Leave To Amend

The trial court improperly denied Buckelew's request to amend his pleadings based on its timing and the procedural posture of the case. Rule 15(a)(1), Arizona Rules of Civil Procedure, provides, "Leave to amend shall be freely given when justice requires." A court may deny leave to amend, however, if " 'undue' delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments or undue prejudice to the opposing party" exist. Owen v. Superior Ct., 133 Ariz. 75, 79, 649 P.2d 278, 282 (1982). We find nothing in this record to justify denying Buckelew's amendment. See id.

In a minute entry clarifying its ruling, the trial court stated that the amendment would have been futile. A trial court may deny a proposed amendment that would be futile without abusing its discretion. Bishop v. Department of Corrections, 172 Ariz. 472, 474-75, 837 P.2d 1207, 1209-10 (App.1992). Buckelew's amendment, however, is not futile if it alleges damage sufficient to give him standing.

To decide whether Buckelew's amendment would have been futile, we must decide what special damage he must allege resulted from zoning violations on the neighboring property in order to give him standing to compel the Town to abate such violations. See generally 4 Arden H. & Daren A. Rathkopf, The Law of Zoning and Planning, §§ 43.03-43.04, at 43-5--43-31 (4th ed.1996).

B. Standing

Courts traditionally limit standing in zoning cases to those individuals who have sustained special damage to their interest in real property. Id. This rule is an outgrowth of the law governing standing in public nuisance cases. Id. § 43.03, at 43-12. A landowner has standing to bring suit to abate a public nuisance when he suffers "special damage" distinct from that common to the public. ³ Armory Park v. Episcopal Community Servs., 148 Ariz. 1, 712 P.2d 914 (1985). Because the zoning law is rooted in the law of nuisance, a zoning ordinance violation came to be treated as a public nuisance for the purpose of determining the standing of an injured party. Rathkopf, supra, § 43.03, at 43-12.

Arizona requires that landowners suffer special damage before they have standing to complain about a zoning decision on adjacent property. See Verner v. Redman, 77 Ariz. 310, 312-13, 271 P.2d 468, 470-71 (1954) (private individual must both allege and prove special damage peculiar to himself to maintain a claim enjoining neighbors from using property); Perper v. Pima County, 123 Ariz. 439, 600 P.2d 52 (App.1979) (adjacent property owner not suffering special damage from granting of variance cannot obtain judicial review of that decision). Although both cases agree that a plaintiff must allege special damage to have standing, neither specifically defines "special damage."

Buckelew contends that Verner permits judicial notice of special damage to his residential parcel because it is adjacent to the mobile home park. We disagree. In Verner, the court refused to take judicial notice of special damage to residential property located over three blocks away from a proposed gas station. Verner, 77 Ariz. at 314, 271 P.2d at 472. The court stated that judicial notice might be proper if plaintiff's home was "adjacent [to the parcel causing the damage] or in such proximity as to make the fact of damages so certain and undisputable that evidence will not be received to refute it." Id. Nevertheless, the parcels were not in fact close to each other, and thus the statement that the court might take judicial notice had the parcels been in close proximity is dictum. Id. at 313-14, 271 P.2d at 471-72; see Town of Chino Valley v. City of Prescott, 131 Ariz. 78, 81, 638 P.2d 1324, 1327 (1981) (dicta is not precedent).

Neither are we persuaded by the Town's assertion that under Perper, Buckelew lacks standing. There, the petitioners filed a special action to nullify the granting of a zoning variance, asserting that it would decrease property values in the whole area, increase traffic, and destroy the residential atmosphere and scenery. Perper, 123 Ariz. at 440, 600 P.2d at 53. The court dismissed the special action, finding that these allegations merely constituted general economic and aesthetic losses but not damage peculiar to the petitioners. Id. at 441, 600 P.2d at 54. Here, because Buckelew alleges damage peculiar to him, rather than general economic and aesthetic losses in the "whole area," Perper does...