City of Glendale v. Aldabbagh
| Decision Date | 10 June 1997 |
| Docket Number | No. CV-96-0342-PR,CV-96-0342-PR |
| Citation | 939 P.2d 418,189 Ariz. 140 |
| Parties | , 245 Ariz. Adv. Rep. 36 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. |
| Court | Arizona Supreme Court |
We are asked to decide whether the right to use a preexisting nonconforming use can be lost through nonuse, short of an intent to abandon. We hold that an intent to abandon is not required and that a preexisting nonconforming use can be lost where its nonuse is attributable, at least in part, to the property owner.
Amer "Omar" Aldabbagh owns an adult entertainment business in Glendale that would violate Glendale's zoning ordinance but for its status as a preexisting nonconforming use. The county attorney filed a nuisance abatement action against Aldabbagh under A.R.S. § 12-801 et seq., alleging that his club was used "for the purpose of lewdness, assignation or prostitution," § 12-802, and seeking an order of abatement closing the building for a period of one year under § 12-806(B)(4). The building was closed on May 28, 1992, pursuant to a temporary restraining order. After an evidentiary hearing, the court found that the business was used on a continuing basis for the commission of sexual acts for money. It thus granted preliminary injunctive relief on June 17, 1992. On December 22, 1993, the parties stipulated to the dismissal of the nuisance abatement action with prejudice because, having been closed for more than one year, the county attorney had obtained relief, with respect to closure, "to the fullest extent allowed by statute." Stipulation for Dismissal, Dec. 22, 1993, at 2.
Within one year of regaining possession of the premises, Aldabbagh leased them to David Benz, who applied for a license to operate an adult entertainment business. Glendale rejected the application, claiming that the property had lost its status as a lawful preexisting nonconforming use because it had not been so used for a period exceeding one year. Article IV, section 7(d) of Glendale's zoning ordinance provides as follows:
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....
Glendale then filed this action against Aldabbagh and Benz, seeking a declaration that the preexisting nonconforming use was lost because the business had "ceased to be carried on for a period exceeding one year" within the meaning of its zoning ordinance. The trial court held that the loss of a preexisting nonconforming use requires a showing of intent to abandon. Because the parties stipulated that Aldabbagh did not intend to abandon his use of the club, the court ordered Glendale to issue a zoning clearance to Benz to allow the property to be used for adult entertainment.
The court of appeals affirmed. City of Glendale v. Aldabbagh, 187 Ariz. 235, 928 P.2d 659 (App.1996). It held that a showing of the owner's intent to abandon the use was necessary and that the discontinuance of the use for the period exceeding one year only created a rebuttable presumption of intent to abandon. This meant that the owner could rebut it by proving no intent to abandon. Judge Gerber wrote separately to express the view that intent to abandon was not required under the ordinance as long as the cessation of the nonconforming use by the property owner was voluntary. Because the issue is one of first impression, we granted review. Rule 23(c)(4), Ariz. R. Civ.App. P.
The Glendale ordinance provides that a preexisting nonconforming use is lost if it is (1) abandoned, or (2) ceased to be carried on for a period exceeding one year. Glendale argues that while abandonment requires a showing of intent, the ordinance is in the disjunctive and any nonconforming use that is ceased to be carried on for a period of more than one year is lost, wholly apart from the intent or actions of the property owner. Aldabbagh and Benz argue that whatever the formulation of the city's ordinance, a preexisting nonconforming use cannot be lost without a showing of intent to abandon. We reject Aldabbagh and Benz's argument that an intent to abandon is essential to a finding of cessation. But we also reject Glendale's argument that any nonuse for a period of more than one year, even for reasons unattributable to the property owner, constitutes cessation. Instead, we hold that to qualify as a nonconforming use that has "ceased to be carried on for a period exceeding one year," the period of nonuse must be attributable at least in part to the property owner.
Abandonment requires a subjective intent to give up the nonconforming use. See 4 Ziegler, Rathkopf's The Law of Zoning and Planning § 51B.02, at 51B-4 (4th ed.1991). To cease means "to come to an end" or "stop." Webster's Third New International Dictionary 358 (1976). Thus, if we were to look only at the ordinary meaning of words, we would conclude that there is nothing about the word "ceased" that requires an intent to abandon. But in the zoning context, the words "ceased" or "cessation" have taken on variations in meaning, influenced in part by legislative intent and concepts of equity.
Intent has been injected into the cessation analysis in two ways. Some courts have concluded that "to discontinue," "to cease," or "to abandon" are synonymous and the party opposed to the use must prove an intent to abandon. See, e.g., Board of Zoning Adjustment for Lanett v. Boykin, 265 Ala. 504, 92 So.2d 906, 909 (1957); Pappas v. Zoning Board of Adjustment of Philadelphia, 527 Pa. 149, 589 A.2d 675, 677 (1991). Other courts, as did our court of appeals here, have construed cessation provisions to create a rebuttable presumption of intent to abandon. See, e.g., Ansley House, Inc. v. City of Atlanta, 260 Ga. 540, 397 S.E.2d 419, 421 (1990); Martin v. Beehan, 689 S.W.2d 29, 31 (Ky.App.1985).
We know, in light of the breadth of Glendale's argument, that it did not intend cessation to be synonymous with abandonment. Its ordinance is written in the disjunctive. If cessation were synonymous with abandonment, Glendale's decision to include cessation in its ordinance would have no meaning. We thus conclude that cessation is not synonymous with abandonment.
The second approach, that of interpreting a cessation provision to give rise to a presumption of intent to abandon, does respect the disjunctive nature of the ordinance and gives some substantive content to the term by shifting the burden of proof. But this approach does not give full effect to the purpose behind the cessation provision. Ordinances like Glendale's that terminate a nonconforming use based upon cessation are intended to eliminate a factual inquiry into a property owner's state of mind. See 4 Ziegler, Rathkopf's The Law of Zoning and Planning § 51B.02, at 51B-9. Imposing an intent to abandon requirement has been criticized as "not only 'unfortunate but silly' because it encourages property owners who have actually abandoned their nonconforming use to commit perjury, and because it not only disregards but supersedes the intention of the legislative body that designed the ordinance." Hartley v. City of Colorado Springs, 764 P.2d 1216, 1223 (Colo.1988) (quoting 4A N. Williams & J. Taylor, American Land Planning Law § 115.06, at 193 (rev. ed.1986)). Legislative bodies that adopt a cessation provision are intending to go as far as they are constitutionally or...
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