City of Glendale v. Aldabbagh
| Decision Date | 07 May 1996 |
| Docket Number | CA-CV,No. 1,1 |
| Citation | 928 P.2d 659,187 Ariz. 235 |
| Parties | CITY OF GLENDALE, a municipal corporation of the State of Arizona, Plaintiff Counterdefendant, Appellant, v. Amer "Omar" ALDABBAGH dba Foxy's Show Club; Amer "Omar" Aldabbagh and Jane Doe Aldabbagh, husband and wife; David B. Benz and Jane Doe Benz, husband and wife, Defendants Counterclaimants, Appellees. 95-0401. |
| Court | Arizona Court of Appeals |
The sole issue on appeal is whether Glendale Zoning Ordinance section 7(d) (1971) (section 7(d)) allows the City of Glendale (Glendale) to terminate a nonconforming use based merely upon a period of nonuse without a showing of the owner's intent to abandon the use. We hold section 7(d) creates a rebuttable presumption of abandonment.
In 1978, Glendale amended its zoning ordinance. One affected use was Foxy's Show Club (the club) operated by Amer Aldabbagh. Although the club was in violation of the amended zoning ordinance, it was allowed to continue its operation as a legal, nonconforming use. The club operated under this status until May 1992. In May 1992, the County Attorney brought a civil nuisance action against Aldabbagh and the club. As part of the nuisance action, law enforcement officials seized the club. Law enforcement officials maintained continuous possession of the club from June 1992 until January 1994. During the period the club was in the possession of county agents, Aldabbagh sent notice to Glendale of his intent to continue operating the club as a legal, nonconforming use.
Following resolution of the nuisance action, possession of the club was returned to Aldabbagh. Aldabbagh then leased the club to David Benz. Benz attempted to obtain a Glendale business license to reopen the business but was denied the license pending zoning clearance. Glendale refused to provide the zoning clearance, claiming the club had lost its legal, nonconforming use status by "ceas[ing] to be carried on for a period exceeding one year." Glendale then initiated a declaratory judgment action against Aldabbagh and Benz (appellees). The parties stipulated that Aldabbagh did not intend to abandon the legal, nonconforming use of the club. The trial court ruled intent to abandon is necessary for appellees to lose the status of legal, nonconforming use and ordered Glendale to issue the requested zoning clearance to appellees.
Appellant filed a timely notice of appeal.
The sole issue on appeal is whether, under section 7(d), a nonconforming use may be lost without a showing that the owner intended to abandon the use. We interpret municipal ordinances in the same manner as state statutes. Abbott v. City of Tempe, 129 Ariz. 273, 275, 630 P.2d 569, 571 (App.1981). Interpretation of statutes is a question of law which this court reviews de novo. Resolution Trust Corp. v. Western Technologies, Inc., 179 Ariz. 195, 201, 877 P.2d 294, 300 (App.1994).
Local governments' authority to enact zoning ordinances is derived from the state and must comply with the state's enabling statutes. Levitz v. State, 126 Ariz. 203, 205, 613 P.2d 1259, 1261 (1980). Arizona's enabling statute specifically protects nonconforming uses by stating:
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.
Ariz.Rev.Stat.Ann. § 9-462.02(A).
Although the state statutory scheme specifically protects existing, nonconforming uses, the state's public policy calls for the eventual "elimination of such nonconforming uses." Ariz.Rev.Stat.Ann. § 9-462.02(A); see also Gannett Outdoor Co. v. City of Mesa, 159 Ariz. 459, 461, 768 P.2d 191, 193 (App.1989). However, the policy of eliminating nonconforming uses may only be accomplished within the statutory scheme, Gannett Outdoor Co., 159 Ariz. at 461, 768 P.2d at 193, and "within the limits of fairness and justice." Rotter v. Coconino County, 169 Ariz. 269, 272, 818 P.2d 704, 707 (1991). Zoning statutes and ordinances regulating nonconforming uses are construed to further the state's policy of eliminating nonconforming uses and should be construed against the nonconforming use. Rotter, 169 Ariz. at 276-77, 818 P.2d at 711-12.
The inability to eliminate nonconforming uses has been cited as the fundamental problem No building, structure or land in or on which a nonconforming use is abandoned or ceased to be carried on for a period exceeding one year or is superseded by a conforming use subsequent to the enactment of this ordinance shall again be devoted to any prohibited use....
[187 Ariz. 238] facing modern zoning. Hartley v. City of Colorado Springs, 764 P.2d 1216, 1223-24 (Colo.1988); City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34, 40 (App.1954). The traditional method of terminating nonconforming uses was through abandonment. However, the difficulty of establishing subjective intent to abandon led many municipalities to implement provisions calling for termination of a nonconforming use after a specified period of nonuse. The Ansley House, Inc. v. City of Atlanta, 260 Ga. 540, 397 S.E.2d 419, 420 (1990); League to Save Lake Tahoe v. Crystal Enterprises, 685 F.2d 1142, 1146 (9th Cir.1982); 4 Ziegler, Rathkopf's The Law of Zoning and Planning § 51B.02 at 51B-9 (4th ed. 1991). Glendale's section 7(d) is one such provision. The relevant portion of section 7(d) provides:
No Arizona court has interpreted a provision similar to Glendale's or addressed the issue of whether an intent to abandon is required before a nonconforming use may be lost. Courts in other states interpreting similar zoning provisions have generally split into two different interpretations. One group of courts interprets discontinuance provisions to mean that after the passage of the statutory time period, the nonconforming use is lost regardless of the owner's intent. The other group of courts interprets the provisions to require an intent to abandon the nonconforming use. Under the latter view, statutory time provisions establish a rebuttable presumption of intent to abandon the use.
A substantial minority of courts hold the owner's intent is not relevant to the question of discontinuance. See, e.g., Essex Leasing, Inc. v. Zoning Bd. of Appeals, 206 Conn. 595, 602, 539 A.2d 101, 105 (1988). These courts generally base their holdings on the difficult evidentiary burden on those attempting to prove abandonment, the goal of uniform and comprehensive zoning plans, discouraging perjury by property owners, and the desire for an efficient means to end nonconforming uses. Hartley, 764 P.2d at 1224; Villari v. Zoning Bd. of Adjustment, 277 N.J.Super. 130, 134-36, 649 A.2d 98, 100-01 (Ct.App.Div.1994).
One group of cases cited by Glendale was decided under statutory schemes specifically negating the need to show intent. Union Square Ass'n, Inc., v. Marc Lounge, Inc., 75 Md.App. 465, 470, 541 A.2d 1321, 1324 (Spec.App.1988) (); see also 4 Ziegler, Rathkopf's The Law of Zoning and Planning § 51B.02, at 51B-9 (4th ed. 1991). Several other courts have stated the broader rule that where a discontinuance provision states a specific time period, the owner's intent is irrelevant. However, these courts were not faced with factual situations where that rule was necessary to their holding. Villari, 277 N.J.Super. at 136, 649 A.2d at 101 (); Anderson v. Paragould, 695 S.W.2d 851, 852 (Ark.App.1985) (); League to Save Lake Tahoe, 685 F.2d at 1146 (). Although these courts spoke in very broad terms, they were not faced with factual scenarios like the one presently before this court where the owner's intent not to terminate the use was maintained clearly and consistently.
Additionally, other courts analyzing discontinuance provisions require the nonuse or discontinuance to be voluntary before the time of discontinuance will automatically terminate a nonconforming use. Hartley, 764 P.2d at 1223, 1225 (stating that "[a] growing Glendale has cited only two, and we were unable to locate any additional, cases where government intervention caused the nonconforming use to be discontinued. The present case is distinguishable from both cases. In Village of Menomonee Falls v. Veierstahler, 183 Wis.2d 96, 515 N.W.2d 290 (App.1994), the village refused to renew the liquor license for a nonconforming tavern. The owner never challenged the validity of the village's successful action to terminate his liquor license. Id. at 104, 515 N.W.2d 293. Additionally, the court's language that no showing of intent is required to terminate a nonconforming use was gratuitous language unnecessary to the holding of the case. Id. Unlike Veierstahler, Aldabbagh vigorously defended against the nuisance action brought against him and was ultimately successful in that action.
[187 Ariz. 239] minority of states hold that voluntary nonuse of the property for the time specified in a discontinuance ordinance terminates the...To continue reading
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