City of Tempe v. Rasor

• Decision Date: 10 June 1975
• Docket Number: No. 1,CA-CIV,1
• Citation: 24 Ariz.App. 118,536 P.2d 239
• Parties: The CITY OF TEMPE, a Municipal Corporation, et al., Appellants, v. Alfred G. RASOR and Kathryn G. Rasor, his wife, Appellees. 2792.
• Court: Arizona Court of Appeals

Page 239

536 P.2d 239

24 Ariz.App. 118

The CITY OF TEMPE, a Municipal Corporation, et al., Appellants, v. Alfred G. RASOR and Kathryn G. Rasor, his wife, Appellees.

No. 1 CA-CIV 2792.

Court of Appeals of Arizona, Division 1, Department C.

June 10, 1975.

C. Brad Woodford, Asst. City Atty., Tempe, for appellants.

[24 Ariz.App. 119] Rawlins, Ellis, Burrus & Kiewit, by Edward O. Burke, Phoenix, for appellees.

OPINION

WREN, Judge.

The question presented on this appeal is whether the trial court erred in overruling a Tempe City Council's decision that appellees' property should not be rezoned to allow a commercial use in an area zoned for primary industrial uses. We find that it did.

The parcel of land involved, comprising approximately .77 acres or 37,000 square feet, is situated within a sixty acre industrial park on the north side of Broadway Road, approximately 2,000 feet east of the northeast corner of McClintock Drive and Broadway Road in the City of Tempe.

The industrial park area had at one time been zoned I--2, light industrial, which allowed a property owner to develop any use allowed in a C--1, commercial zone. In June of 1972, the City amended its zoning ordinance, placing greater restrictions on commercial development within the area. In relevant part, the ordinance restricted retail commercial operations in the industrial area to ten percent of the gross floor area of the primary industrial use. All commercial operations not directly related to the primary industrial use, or that exceeded the ten percent floor area limitation, had to obtain a use permit.

The appellees, Alfred G. Rasor and Kathryn G. Rasor, his wife, (Rasors) began negotiations to purchase the property in May or early June of 1972. They were desirous of putting up a convenience market, a use permitted under the original ordinance but not under the amended ordinance. In August, some two months after Tempe had adopted the amended ordinance, Rasors entered into a purchase contract. The purchase was made contingent upon their successful application for a use permit. However, the application for such permit was denied on November 20, 1972 by the Tempe Board of Adjustment. Nevertheless, Rasors closed escrow on December 20, 1972, and purchased the property.

In February of 1973, Rasors filed an application with the City of Tempe to rezone their property from I--2, light industrial, to C--1, commercial. After a hearing, the City Planning Commission on February 26, 1973, voted 4 to 3 to recommend approval. However, on March 22, 1973, after reviewing the Commission's divided recommendation, and after conducting its own hearing, the City denied the application by a 6 to 0 vote. The Rasors then brought an action for declaratory judgment in the Superior Court.

Rasors' contention before the trial court was that the refusal of the City to allow them to use their property for a commercial purpose was arbitrary and discriminatory in view of existing commercial development in the area; and that such refusal had no substantial relationship to the public health, safety or welfare.

On March 7, 1974, judgment was rendered in favor of Rasors, based on the following finding:

'(T)he application of the Zoning Ordinance of the City of Tempe as applied to (Rasors') property constitutes an unreasonable restriction on the use of (Rasors') property and is an unreasonable exercise of the police power on the part of the City of Tempe . . ..'

It is the City of Tempe's contention that the reasonableness of the ordinance was 'fairly debatable,' and accordingly, the City Council's decision should have been sustained by the trial court.

We start with the proposition that zoning enactments being legislative functions, are cloaked with a presumption of validity. Mueller v. City of Phoenix, 102 Ariz. 575, 435 P.2d 472 (1967); Hart v. Bayless Investment & Trading Co., 86 Ariz. 379, 346 P.2d 1101 (1959); City of Phoenix v. Collins, 22 Ariz.App. 145, 524 P.2d 1318 (1974); City of Phoenix v. Beall, 22 Ariz.App. 141, 524 P.2d 1314 (1974); City of Phoenix v. Price, 18 Ariz.App. 144, 500 P.2d 1132 (1972). To overcome this presumption it must be shown that the classification is clearly arbitrary and unreasonable and without any substantial relation to the public health, safety, morals or general welfare. City of Tucson v. Arizona Mortuary, 34 Ariz. 495, 272 P. 923 (1928); Collins, Supra.

The limited function of the judiciary in zoning matters is reflected by the following quote from Rubi v. 49'er Country Club Estates, Inc., 7 Ariz.App. 408, 411--412, 440 P.2d 44, 47--48 (1968):

'With the wisdom or lack of wisdom of the determination we are not concerned. The people of the community, through their appropriate legislative body, and not the courts, govern its growth and its life. Let us state the proposition as clearly as may be: It is not our function to approve the ordinance before us as to wisdom or desirability. For alleged abuses involving such factors the remedy is the ballot box, not the courts. * * *' Robinson v. City of Bloomfield Hills, 350 Mich. 425, 86 N.W.2d 166, 169 (1957).

That the trial court or this court may disagree as to the advisability of an ordinance or the refusal to amend it, is of no moment, even if we were to indulge in the elusion that an imperfect zoning regulation may be corrected by judicial scrutiny on appeal. It is immaterial whether we would have been wiser if we had been called upon to perform this legislative function. As stated in Rubi, Supra, 'Courts are ill equipped to sit as superzoning commissions. Therefore, where the reasonableness of a zoning ordinance is fairly debatable, it must be upheld.' 7 Ariz.App. at 411, 440 P.2d at 47.

A definition of the 'fairly debatable' standard is set forth in 8A McQuillin, Municipal Corporations, § 25.281 at 291--292 (3rd ed. 1965). In pertinent part it states:

'(I)f reasonable minds differ as to whether a zoning restriction has a substantial relation to one of these fundamental purposes of the police power and of zoning, the restriction must stand as a valid exercise of the police power.'

Whether the appellate court is bound by the trial court's findings as to reasonableness of an ordinance has been the subject of conflicting decisions in this Court. Compare City of Phoenix v. Burke, 9 Ariz.App. 395, 452 P.2d 722 (1969), With Rubi, Supra. Without detailing here the conflict, we choose to follow the course charted by Price and Beall, and follow the Rubi rationale, holding that the trial court's findings are not binding on the reviewing court if the record shows the question is 'debatable.' Accordingly, the function of this court is to determine whether the record shows a reasonable basis for the action of the zoning authorities, and if the reasonableness of the ordinance is fairly debatable, the legislative determination will not be disturbed.

In answering this question, the reviewing court considers such factors as the character of the property in question, the nature of the surrounding area, and recent trends of development in the area. See Price, Supra.

The record reflects the following physical facts. Broadway Road is a major east-west arterial through Tempe. On the north side of Broadway, running east of McClintock Drive (a north-south thoroughfare), there are four existing developments--a gasoline service station, O'Malley's Building Materials Center, a Dunn Edwards Paint Store, and the Tip Top Nursery. Rasors' property is situated between the paint store and the nursery. A proposed new street adjacent to the subject property to the west would, when completed, place Rasors' land at the corner of an intersection. However, though this new street would intersect with Broadway, it would not be a through street.

The gasoline station, zoned C--2, is at the intersection of Broadway Road and McClintock Drive, and is not within the industrial park. To the east and rear of the service station is the O'Malley development, a mixed industrial-commercial use, which was granted a use permit to exceed the commercial space limitation of the amended ordinance. The only factual conflict in the evidence relates to the overall nature of this development. Don Hull, the Tempe Planning Director depicted it as being 70% Industrial and 30% Commercial, whereas Rasors characterized it as being 75% Commercial and 25% Industrial. Hull apparently based his opinion on the amount of commercial space O'Malley's had in use in proportion to the total amount of property it had in the park, including 10 to 15 acres not yet developed. Rasors based their conclusion on the amount of commercial floor area O'Malley's is presently using in proportion to the rest of the floor area.

Contiguous to O'Malley's is the Dunn Edwards Paint Store, another mixed industrial-commercial use, which was also granted a use permit to exceed the commercial space limitation of the ordinance. Adjacent to Dunn Edwards, and directly across the proposed road from Rasors' property, is vacant land owned by the Sourthern Pacific Railroad Company--the largest landowner in the industrial park. The railroad has filed a preliminary plat for an industrial subdivision with the Tempe Planning Commission.

Contiguous to and east of Rasors' property is the Tip Top Nursery, a commercial establishment which existed prior to the adoption of the amended ordinance and is classified as a non-conforming use. To the east of the nursery, the land is vacant for approximately 800 to 1200 feet before a residential zone starts. On the south side of Broadway, the development has been primarily multi-family residential with some office buildings.

At the trial, Rasors submitted letters from the Sourthern Pacific Railroad Company and the Tip Top Nursery, stating that they had no objection to a rezoning of the parcel. In addition, John Rasor, employed by the Rasors testified that Rasors had previously submitted to the City, prior to the adverse decision, a petition signed...