City of Phoenix v. Superior Court In and For Maricopa County

• Decision Date: 15 November 1973
• Docket Number: No. 11283,11283
• Parties: CITY OF PHOENIX, a political subdivision of the State of Arizona, Plaintiff-Petitioner, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, and Edwin Thurston, Judge thereof, and Sidney M. Rosen and Babette Rosen, his wife, Defendants-Respondents.
• Court: Arizona Supreme Court

Page 1175

515 P.2d 1175

110 Ariz. 155

CITY OF PHOENIX, a political subdivision of the State of Arizona, Plaintiff-Petitioner, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, and Edwin Thurston, Judge thereof, and Sidney M. Rosen and Babette Rosen, his wife, Defendants-Respondents.

No. 11283.

Supreme Court of Arizona, In Banc.

Nov. 15, 1973.

Joe R. Purcell, City Atty., by Donald W. Lindholm, Asst. City Atty., Phoenix, for plaintiff-petitioner.

Kenney & Rosen by Donald J. Kenney and Sidney M. Rosen, Phoenix, for defendants-respondents.

HAYS, Chief Justice.

This is a special action brought in this court by the City of Phoenix against the Superior Court of Maricopa County. The real respondents in interest are Sidney Rosen, a Phoenix attorney, and his wife.

The only issue raised is whether the Superior Court, in a petition for special action in the nature of a petition for a writ of certiorari, directed to the Phoenix (Zoning) Board of Adjustment, may hold a trial de novo, or whether it is limited to reviewing the record made before the Board of Adjustment.

In April of 1971, Mr. Rosen purchased a house located at 119 East Alvarado Road, in Phoenix. The house had been built in 1927 on property that had been annexed to the city in 1919. Prior to June, 1930, the City of Phoenix had not passed any zoning ordinances affecting this property.

The premises included not only the house, but also one outbuilding, the nature of which is in dispute. Mr. Rosen claims that it was residential in nature because it had electricity, water, a large window, and ducts connecting it to the house for purposes of heating and air conditioning. Letters and statements in the file from neighbors indicate that Mrs. Peterson, from whom Rosen bought the property, had owned the premises for over thirty years, during which time the outbuilding was used as a storeroom for garden tools, ladders, etc., and that she had not, during those thirty years, converted the building into living quarters.

Mrs. Rosen testified that she had a son and a daughter who were reaching the age when they would need separate bedrooms, and that eventually they intended to use the outbuilding for a bedroom for one of the children, and would not have purchased the home were it not for this fact.

Mr. Rosen concedes that the residence is forty-three years old and 'there are no accurate records available of the original builder's intent and/or actual usage of this annex,' but because of the presence of water, electricity and ducts, 'it is our understanding' that the annex had been used, or was planned to be used, as quarters for a maid who would work in the house. Many of these facts have been gleaned from a letter from Rosen to the chief zoning inspector of the city. In that letter, Rosen wrote that he had remodeled the outbuilding (which he refers to as an annex), repaneled some of the walls, painted the unit thoroughly, put in carpeting and furnishings, and 'are using it as an integral bedroom for our home.' He concluded the letter as follows:

'. . . It never occurred to us that there might be any possible violation of a setback ordinance. . . . Needless to say, with the remodeling concluded and with this annex being used as a regular bedroom of our home at the present time, we would be most appreciative if you could see fit to provide the necessary variance and remove whatever potential violation Mr. Guilfoyle may feel exists.'

In reply, the chief zoning inspector wrote Mr. Rosen under date of January 26, 1972, that 'the setbacks . . . are a non-conforming use' which could lawfully continue 'as long as it were not expanded, or abandoned for a period exceeding one year.'

In Mr. Rosen's testimony before the Board of Adjustment, he stated that the annex was leased by him on February 12, 1972, to an elderly crippled woman in reliance on the January 26, 1972, letter.

Rosen admits that the neighborhood is zoned for single family dwellings. Upon discovering that there were two families living on the premises (the Rosens in the house and the tenant in the annex), the neighbors became perturbed an twenty-four of them made formal protest to the city. Thereupon, the city wrote Mr. Rosen that new information received was contrary to the facts previously submitted to them, and that while the setbacks could be treated as a legal nonconforming use, the occupation of the annex by one not a member of Rosen's family was illegal and would have to cease.

A hearing was duly held by the Board of Adjustment on October 25, 1972. Mr. Rosen testified that the annex had 'complete electricity' when he bought it. One of the neighbors, in a statement in the record, said it had only a single drop cord with a bulb. Rosen further stated (none of the testimony was under oath) that '(o)ur information was that this was built originally as a maid's quarters . . .' and that the present rental situation was temporary to help pay the mortgage, until it was necessary for his two children to have separate bedrooms. Mr. Rosen admitted putting in a partition and rewiring the annex. He admitted insulating the building. He admitted it was filthy and used only for storage when he bought the place. He also installed a small portable unit that combined a sink, range and refrigerator.

Rosen complains about the revocation of the decision that a nonconforming use existed and claims that the time to appeal had expired. The Board felt the city could not appeal since it had no notice of the decision, which was merely a letter to Mr. Rosen, with no notice to anyone. It also felt the letter did not refer to a nonconforming use except in the context of the setback and Rosen's representation that it was being used as a regular bedroom by a member of the family, which was no longer the situation.

Counsel for the protesting neighbors argued to the Board that it could not grant a variance to a single owner and thus permit him to have more than one family separately housed on a lot in a neighborhood zoned for single family residences. He also argued that even if Rosen could prove an actual rental many years ago, such a two-family use had been abandoned nearly thirty years before, according to the information before the Board, and it cannot now be resumed after the zoning has changed. He stated that if and when Rosen desired to have his children...