Corrigan v. City of Scottsdale, 1

Decision Date28 February 1985
Docket NumberNo. 1,CA-CIV,1
Citation720 P.2d 528,149 Ariz. 553
PartiesJoyce M. CORRIGAN, Plaintiff-Appellant, v. CITY OF SCOTTSDALE, a municipal corporation, Defendant-Appellee. 6300.
CourtArizona Court of Appeals

GRANT, Judge.

In this appeal we consider the validity of the City of Scottsdale's zoning ordinance establishing the Hillside District. In November, 1977 Scottsdale rezoned the area in and around the McDowell Mountains into the Hillside Conservation Area (Conservation Area) and the Hillside Development Area (Development Area). Essentially no new development was permitted on land falling within the Conservation Area. Joyce Corrigan, appellant (Corrigan), who owns land within the Hillside District, brought suit to declare the ordinance unconstitutional and prayed for monetary damages for taking of property. Subsequently Corrigan also unsuccessfully sought to raise the issue in the trial court of whether the ordinance is authorized by the state enabling legislation. After an adverse judgment sustaining the validity of the ordinance Corrigan brought this appeal.

The issues raised are:

(1) whether the trial court erred in not considering evidence of the intent of the Planning Commission and its staff;

(2) whether the Hillside District zoning ordinance is authorized by state law;

(3) whether the Hillside District zoning ordinance is an unconstitutional exercise of police power;

(4) whether appellant is entitled to money damages for an illegal taking.

The background facts are as follows. Corrigan owns a large parcel of land comprising approximately 4,800 undeveloped acres. Touching this central parcel at a single point at its northwest corner is a smaller parcel of approximately 608 undeveloped acres also owned by Corrigan. Corrigan owns a third parcel of approximately 330 undeveloped acres which connects with the central parcel at the central parcel's southwest corner. All of this property is located within the City of Scottsdale and is part of, or close to, the McDowell Mountains.

The McDowell Mountains, located at the north end of the City of Scottsdale, constitute a unique geographic area. The mountains and surrounding hillsides are the only hilly or mountainous terrain within the city limits. While the elevation of the developed part of Scottsdale is approximately 1,250 feet, elevations in the McDowell Mountains rise to over 4,000 feet. As of November, 1977 no development of any kind was located in or near the McDowell Mountains within the corporate limits of Scottsdale.

Corrigan's property previously had been part of the DC Ranch, owned by Kemper Marley 1 and E.E. Brown. In the early 1960's the ranch lay outside the corporate boundaries of Scottsdale. In 1963, Scottsdale annexed the southern part of the ranch, including Corrigan's property. The newly annexed property was zoned R-1-35, a classification permitting single family residences on lots of at least 35,000 square feet. This zoning classification was generally regarded as a "holding" classification for rural property which was not ready for development.

After the death of E.E. Brown in 1966, Corrigan purchased from Brown's children their one-half interest in the estate, which included a one-fourth interest in the partnership. Corrigan paid in excess of two million dollars for the children's interest. Upon the death of Brown's widow, the partnership between Marley and Brown was liquidated and its real estate holdings partitioned. The estate of E.E. Brown was awarded certain land, including the property involved here, which the probate court in 1973 distributed to Corrigan as assignee of Brown's children. As part of these partition proceedings property owned by Corrigan's father is also affected by the challenged ordinance.

On November 15, 1977 the zoning ordinance of Scottsdale was amended by adding sections 6.800 through 6.807, which create the Hillside District. Scottsdale, Ariz., Ordinance 455 § 6.800-.807 (1977) [hereinafter cited as Ordin. § ---]. The Hillside District ordinance established two areas, the Conservation Area and the Development Area, separated by a "no development" line. Ordin. § 6.802. Land within the Conservation Area, which is above the "no-development" line, is set aside solely for the conservation of permanent natural open space, while land within the Development Area can be developed subject to certain limitations. Ordin. §§ 6.802, .805-.807. The no-development line is located where any of the following conditions occur: unstable slopes subject to rolling rocks, rockfalls or landslides; bedrock areas; slopes of 15 percent or greater; and shallow, rocky mountain soils subject to severe erosion. Ordin. § 6.802(A). These criteria identify where a mountain begins. An adjustment procedure exists as to determination of the no development line. Ordin. § 6.806(C). 2 Pursuant to a 1979 amendment, the Conservation Area shall not "be required to be more than eighty (80) percent of any land held in single common ownership that existed on October 8, 1977." Ordin. § 6.806(C)(2).

Land within the Conservation Area is to be "legally secured for the conservation of permanent natural open space through easements or dedication." Ordin. § 6.806(A)(3). No buildings, structures or impermeable surfaces are permitted in the Conservation Area. Ordin. § 6.806(B). Density credits are allotted for land above the no development line, Ordin. § 6.806(A)(1), which may be transferred for use in adjacent land within the Development Area. 3 These density credits are also referred to as Transferable Development Rights.

Land within the Development Area is subject to certain limitations imposed by the Hillside Ordinance. Depending on the degree of slope a fixed percentage of a site sought to be developed must be retained in its natural state. Ordin. § 6.807(A)(1). A density bonus is allowed where a developer sets aside an extra 20% natural area than is otherwise required for a proposed development of single-family residences in an R-1 zone. Ordin. § 6.807(B).

A study of ownership patterns within the Hillside District showed that the land remained in a few large ownerships. This study of the ownership patterns revealed that owners of property in the mountains, including Corrigan, had developable areas below the no-development line (within the so-called "receiving area") sufficient in size to accommodate the transfer of density credits from the land above the no-development line within the Hillside Conservation District.

The no-development line does not impinge on the two small parcels of land owned by Corrigan; however, of the approximately 4,800 acres contained in the central block, 80% or 3,836 acres, lie above the no development line. Assuming Corrigan could obtain the maximum adjustments on the placement of the no-development line, 3,523 acres, or 74% of the central block, still would lie within the designated conservation area.


At trial Corrigan introduced evidence concerning the intent of the City's Planning Commission and its staff with respect to promulgation of the Hillside Ordinance. This evidence tended to show that the primary motivation in proposing the ordinance was to preserve the McDowell Mountains in their natural state for the benefit of all residents of the City. Distilled, Corrigan's argument is that the primary purpose of the ordinance is to obtain a permanent mountain preserve for the public without cost. The trial court concluded that as a matter of law inquiry into the motives behind enactment of the ordinance was precluded. We agree.

Zoning ordinances are legislative acts. Wait v. City of Scottsdale, 127 Ariz. 107, 618 P.2d 601 (1980). Courts will not inquire into the motives of the legislative body which enacts a particular piece of legislation. Id.; Tucson Community Development & Design Center, Inc. v. City of Tucson, 131 Ariz. 454, 641 P.2d 1298 (App.1981). 4 Nor will courts inquire what evidence or reasons were presented to sway the legislative body. Tucson Community Development & Design Center, Inc. v. City of Tucson. The principal test to be applied by a trial court on the issue of a zoning ordinance's constitutionality is whether the zoning bears a substantial relation to the public health, safety, morals or general welfare. Cardon Oil Co. v. City of Phoenix, 122 Ariz. 102, 593 P.2d 656 (1979); Bartolomeo v. Town of Paradise Valley, 129 Ariz. 409, 631 P.2d 564 (App.1981). As long as the reasonableness of the ordinance in question is fairly debatable the courts must uphold the zoning ordinance. Id.; Dye v. City of Phoenix, 25 Ariz.App. 193, 542 P.2d 31 (1975).

Corrigan apparently accepts these general propositions but argues that legislative history is a proper method of ascertaining the legislative intent or purpose in enacting a law. E.g., Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548, 96 S.Ct. 2295, 49 L.Ed.2d 49 (1976); State v. Barnard, 126 Ariz. 110, 612 P.2d 1073 (App.1980); State ex rel. Swartout v. Civil Service Commission, 25 Wash.App. 174, 605 P.2d 796, Cert. Denied, 449 U.S. 992, 101 S.Ct. 527, 66 L.Ed.2d 288 (1980). Legislative intent is relevant, however, only in interpreting a statute or ordinance. Corrigan argues that her evidence aided in defining the phrase "permanent natural open space." We do not see how evidence, tending to show that the City wanted, through the Hillside Ordinance, to establish a public mountain preserve in the McDowell Mountains, would facilitate a knowledgeable interpretation of that phrase. We therefore find no error.


Corrigan also argues on appeal that the Hillside Ordinance is not...

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