Circle K Corp. v. City of Mesa

• Decision Date: 18 December 1990
• Docket Number: No. 1,CA-CV,1
• Citation: 803 P.2d 457,166 Ariz. 464
• Parties: The CIRCLE K CORPORATION, a Texas corporation, real party in interest; Maxicraft, Inc., an Arizona corporation, nominal party, Plaintiffs-Appellants, v. The CITY OF MESA, an Arizona municipal corporation; the City of Mesa Board of Adjustment, a governmental subdivision of the City of Mesa; John Freeman, Frank DeRosa, Darl J. Andersen, Terry Delley, Kay Tennison, Helen T. Stortz, Dick Woelkers, in their capacity as acting members of the City of Mesa Board of Adjustment; and Jay Addington, in his capacity as Superintendent of Building Inspections, Defendants-Appellees. 88-205.
• Court: Arizona Court of Appeals

Page 457

803 P.2d 457

166 Ariz. 464

The CIRCLE K CORPORATION, a Texas corporation, real party in interest; Maxicraft, Inc., an Arizona corporation, nominal party, Plaintiffs-Appellants, v. The CITY OF MESA, an Arizona municipal corporation; the City of Mesa Board of Adjustment, a governmental subdivision of the City of Mesa; John Freeman, Frank DeRosa, Darl J. Andersen, Terry Delley, Kay Tennison, Helen T. Stortz, Dick Woelkers, in their capacity as acting members of the City of Mesa Board of Adjustment; and Jay Addington, in his capacity as Superintendent of Building Inspections, Defendants-Appellees.

No. 1 CA-CV 88-205.

Court of Appeals of Arizona,

Division 1, Department D.

Dec. 18, 1990.

[166 Ariz. 465] Streich, Lang, Weeks & Cardon by Thomas R. Canham, Phoenix, for plaintiffs-appellants.

Shelley & Bethea by J. LaMar Shelley, Mesa, for defendants-appellees.

OPINION

GRANT, Chief Judge.

This appeal concerns the validity of a Mesa zoning ordinance which requires the elimination or modification of a nonconforming sign as a condition to erecting a separate conforming sign on the same property. Appellants Circle K Corporation (Circle K) and Maxicraft, Inc. (Maxicraft) raise two challenges to the ordinance: 1) whether the ordinance conflicts with A.R.S. § 9-462.02, and is therefore void; and 2) whether the ordinance allows an unconstitutional taking of private property without just compensation.

FACTS

The facts pertinent to this appeal are undisputed. Circle K operates a convenience store in Mesa, Arizona. A twenty-foot high detached sign, displaying the Circle K logo, stands near the corner of the property. This sign conformed with the Mesa City Code in effect at the time the sign was erected. However, on October 6, 1986, the City of Mesa (Mesa) amended its code so that the height of detached signs was limited to twelve feet. Because the twenty-foot sign was erected prior to the amendment, it became a legal nonconforming sign. See Mesa, Az., Code § 4-4-5 (1986).

After the amendment, Circle K remodeled and upgraded the store. In connection with the remodeling, Maxicraft, acting on Circle K's behalf, applied for a sign permit to erect an additional logo and partially illuminated color band on the outside wall of the remodeled store. The proposed logo and color band comply with the current Mesa City Code. However, the application was denied on the basis of Mesa City Code § 4-4-12(D)(6), which reads:

Sign permits for new or additional signs shall not be issued for a specific occupancy if such occupancy displays unlawful or nonconforming signs. A sign permit may be issued for a specific occupancy providing the terms thereof specify modification or removal of nonconforming signs resulting in conformity with the provisions of this Code.

Maxicraft then applied to the Mesa Board of Adjustment (the Board) for a variance to erect the logo and color band. The Board denied the request, finding that the code provision requiring that the nonconforming sign be brought into compliance was invoked by the property owner's voluntary remodeling, and did not abrogate Circle K's right to signage. The Board also reasoned that "granting the variance would be contrary to the intent of the Sign Code to bring nonconforming signs into eventual compliance with current Code requirements." City of Mesa, Minutes of the Board of Adjustment (December 2, 1986).

Circle K sought review of the Board's action by filing a special action in superior court pursuant to A.R.S. § 9-462.06(K). Upon the parties' cross-motions for summary judgment, the trial court granted summary judgment in favor of Mesa. After its motion for a new trial was denied, Circle K brought this appeal, and raises two issues:

1) Whether the Mesa ordinance violates A.R.S. § 9-462.02; and

2) If not, whether requiring removal or modification of the nonconforming sign as a condition to granting the new sign permit amounts to an illegal exaction.

A.R.S. § 9-462

1. Does the Mesa ordinance violate A.R.S. § 9-462.02?

Circle K argues that the Mesa ordinance which requires the elimination or modification of its nonconforming sign is void because it conflicts with A.R.S. § 9-462.02. That statute provides:

The municipality may acquire by purchase or condemnation private property for the removal of nonconforming uses and structures. The elimination of such nonconforming uses and structures in a zoned district is for a public purpose. Nothing in an ordinance or regulation authorized by this article shall affect existing property or the right to its continued use for the purpose used at the time the ordinance or regulation takes effect, nor to any reasonable repairs or alterations in buildings or property used for such existing purpose.

Circle K argues that the ordinance results in the removal of nonconforming signs without compensation. The purpose of § 9-462.02, it contends, is to protect the rights of owners whose property remains unchanged after it acquires status as a nonconforming use. The only methods by which municipalities can remove nonconforming uses and structures are by purchase or condemnation. Circle K argues that the nonconforming use in this case is the detached sign alone. Therefore, the addition of the attached conforming sign to another part of the premises is not an expansion or change to the nonconforming use. Because there is no change to the nonconforming use, this use should continue under A.R.S. § 9-462.02. Mesa's attempt to change the nonconforming sign by a method other than purchase or condemnation violates § 9-462.02.

In support of the ordinance, Mesa contends that acquisition by purchase or condemnation as set forth in A.R.S. § 9-462.02 is permissive, and is simply one way of eliminating nonconforming uses. The ordinance merely provides another. Mesa argues that because the nonconforming detached sign advertises the store, it is an integral part of the business, and therefore, the entire store, including signs, is the existing property. See Mueller v. City of Phoenix, 102 Ariz. 575, 582, 435 P.2d 472, 479 (1967). Because only reasonable repairs and alterations to nonconforming uses are protected under A.R.S. § 9-462.02, the addition of a conforming attached sign will constitute an expansion to the property, taking the matter outside the protection of A.R.S. § 9-462.02. Finally, Mesa points out that the ordinance comes into play only if the property owner voluntarily chooses to apply for a permit to erect an additional sign.

2. Is the sign protected as existing nonconforming property?

Local zoning authority derives from the Urban Environment Management Act, A.R.S. § 9-461 et seq., and A.R.S. § 9-462. See City of Scottsdale v. Superior Court, 103 Ariz. 204, 439 P.2d 290 (1968). A.R.S. § 9-462.01(A) gives municipalities broad authority to regulate signs and other land uses. See City of Scottsdale v. Scottsdale Associated Merchants, 120 Ariz. 4, 583 P.2d 891 (1978); Bartolomeo v. Town of Paradise Valley, 129 Ariz. 409, 631 P.2d 564 (App.1981). That authority is not unlimited, however; municipalities must adhere to the guidelines set forth in the Act. For example, in McIntyre v. Mohave County, 127 Ariz. 317, 620 P.2d 696 (1980), a change in a local zoning ordinance was void because of the county's failure to adhere to a notice requirement provided in the statute. Nonetheless, zoning ordinances are presumed valid. Transamerica Title Insur. Co. v. City of Tucson, 23 Ariz.App. 385, 387, 533 P.2d 693, 695 (1975).

The plain language of the statute prohibits ordinances from affecting property existing at the time the ordinance takes effect. Once the ordinance is passed, however, the statute continues to protect only existing property, i.e., property which remains unchanged or receives only reasonable repairs or alterations. It does not protect new or additional construction to that property. A.R.S. § 9-462.02. This is in accord with the underlying spirit of zoning, which is to restrict nonconforming uses, and public policy requires that statutes be strictly construed against allowing their continuation. Gannett Outdoor Co. v. City of Mesa, 159 Ariz. 459, 461, 768 P.2d 191, 193 (App.1989). See also Mueller v. City of Phoenix, 102 Ariz. 575, 585, 435 P.2d 472, 482 (1967) (Struckmeyer, J., dissenting); 1 R. Anderson, American Law of Zoning 3d, § 6.35 et seq. (1986).

The first question here is whether the nonconforming sign is a part of the entire property such that additions or expansions to other unconnected parts of the property can be considered expansions of the nonconforming sign. If the addition of an attached conforming sign to the wall of the store constitutes an expansion of the nonconforming use, it would not be protected by A.R.S. § 9-462.02. See Arizona Foundation for Neurology & Psychiatry v. Sienerth, 13 Ariz.App. 472, 477 P.2d 758 (1970). If, however, additions to other parts of the property are not additions to the nonconforming sign, the protections of the statute would extend to the nonconforming sign, as long as the sign and its use remain unchanged. A.R.S. § 9-462.02; see also Gannett, 159 Ariz. at 461-62, 768 P.2d at 193-94; Sienerth, 13 Ariz.App. at 477, 477 P.2d at 763. Mesa relies on Sienerth for the holding that the earlier ver sion of the statute, which was substantially the same as the last sentence of the current statute, protects only existing property that remains unchanged and "reasonable repairs or alterations in buildings or property used for such existing purpose." While this proposition is correct, it is not dispositive in this case. In Sienerth, the plaintiff sought to expand an existing nonconforming physical plant used for a nonconforming hospital. It did not address whether a conforming addition to a conforming business which it advertised by a nonconforming on-premises sign could be considered a change in existing property.

Both parties cite Mueller. In particular, they quote the following portion of that...