Emmett McLoughlin Realty v. Pima County

• Decision Date: 17 February 2006
• Docket Number: No. 2 CA-CV 2005-0073.,2 CA-CV 2005-0073.
• Citation: 132 P.3d 290,212 Ariz. 351
• Parties: EMMETT McLOUGHLIN REALTY, INC.; Quik-Mart Stores, Inc.; Douglas S. Holsclaw, Jr.; Anne T. Holsclaw; Toops Family Limited Partnership; Riggs Family Trust; Lynn Greer Trust; and Julie Greer Trust, Plaintiffs/Appellants, v. PIMA COUNTY, Arizona; and Members of the Board of Supervisors of Pima County, Arizona, Defendants/Appellees.
• Court: Arizona Court of Appeals

132 P.3d 290

212 Ariz. 351

EMMETT McLOUGHLIN REALTY, INC.; Quik-Mart Stores, Inc.; Douglas S. Holsclaw, Jr.; Anne T. Holsclaw; Toops Family Limited Partnership; Riggs Family Trust; Lynn Greer Trust; and Julie Greer Trust, Plaintiffs/Appellants, v. PIMA COUNTY, Arizona; and Members of the Board of Supervisors of Pima County, Arizona, Defendants/Appellees.

No. 2 CA-CV 2005-0073.

Court of Appeals of Arizona, Division Two, Department A.

February 17, 2006.

As Corrected March 9, 2006.

Law Office of Jeffrey M. Neff, By Jeffrey M. Neff and Gabrielle A. Shinohara, Tucson, for Plaintiffs/Appellants.

Barbara LaWall, Pima County Attorney, By Paul A. Loucks, Tucson, for Defendants/Appellees.

OPINION

HOWARD, Presiding Judge.

¶ 1 In this challenge to appellee Pima County's zoning actions concerning certain real property, appellants Emmett McLoughlin Realty, Inc., and others¹ (collectively, McLoughlin) appeal from summary judgment granted in favor of Pima County. McLoughlin argues the trial court erred by rejecting its claims that Pima County had violated its constitutional due process rights, violated the notice and hearing provisions in A.R.S. § 11-829(C) and Pima County Code (P.C.C.) § 18.91.060(B)(1), and acted without jurisdiction in violation of § 11-829 and P.C.C § 18.91.030(A)(2). Finding the trial court did not err in granting Pima County judgment on McLoughlin's claims, we affirm.

¶ 2 We review a grant of summary judgment de novo. Strojnik v. Gen. Ins. Co. of Am., 201 Ariz. 430, ¶ 10, 36 P.3d 1200, 1203 (App.2001). A motion for summary judgment should be granted if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(c)(1), 16 A.R.S., Pt. 2; see also Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). We view the facts in the light most favorable to the party against whom summary judgment was entered. Link v. Pima County, 193 Ariz. 336, ¶ 12, 972 P.2d 669, 673 (App. 1998).

¶ 3 This appeal concerns three parcels of real estate, totaling approximately thirty-two acres, each of which is owned by separate individuals or entities. Prior to actions that led to this litigation, Parcels A and C were zoned suburban ranch, and Parcel B was zoned local business. In 1999, parties interested in purchasing Parcel A applied to the County for a conditional use permit to construct and operate a charter school on that parcel. A hearing administrator approved the application, but several neighboring property owners appealed this decision to the Pima County Board of Supervisors. The appeal on Parcel A was scheduled to be heard by the Board at a public meeting on July 13, 1999. Around the same time as the conditional use permit for Parcel A was being processed, the owner of Parcel C filed an application requesting the parcel be rezoned from suburban ranch to major resort for use as a resort and conference center.

¶ 4 Before the hearing on the appeal concerning Parcel A occurred, a neighborhood action group submitted a report to Pima County Supervisor Raul Grijalva, proposing downzoning Parcel B from local business to suburban ranch and objecting to any commercial development on Parcels A and C. Grijalva subsequently caused an agenda item to be added to the Board's regular meeting on July 6, 1999, to allow the action group to present its report to the Board. At the meeting, the action group presented the contents of its report, and the Board directed County staff to initiate the process of downzoning Parcel B from local business to suburban ranch. Although Grijalva made that motion and the Board unanimously passed it, he also noted the matter would first have to go through planning and zoning procedures and during that process various legal issues would have to be addressed.

¶ 5 One week later, the Board held the public hearing on the appeal concerning the conditional use permit for Parcel A. This hearing was preceded by publication in a newspaper of general circulation in the county seat and personal notice to the appellants who own the property. At that hearing, several speakers referred to the events that had occurred at the July 6 Board meeting. The Board voted to deny the application for the conditional use permit for Parcel A by a vote of three to two.

¶ 6 On March 29, 2000, the Pima County Planning and Zoning Commission held separate public hearings on whether to downzone Parcel B and to rezone Parcel C. Both hearings were preceded by publication in a newspaper of general circulation in the county seat, posting notice on the subject properties along the public right of way, and personal notice to the appellants who own the property. The Commission subsequently voted to recommend that the Board not downzone Parcel B to a combination of suburban ranch and single residence. The Commission also issued a report recommending that the Board deny the owner's application to rezone Parcel C from suburban ranch to major resort.

¶ 7 In April, the Board held a public hearing concerning the rezoning of Parcel B and, despite the Commission's recommendation, voted to downzone that parcel. Two months later, the Board held a public hearing on the application to rezone Parcel C from suburban ranch to major resort and, in accordance with the Commission's recommendation, voted to deny the rezoning request. Each of these public hearings was preceded by publication in a newspaper of general circulation in the county seat and personal notice to the appellants who own the property.

¶ 8 McLoughlin sued Pima County and its Board of Supervisors, arguing the County had violated the due process rights of the owners of each of the three parcels because of the lack of notice of the Board's July 6 meeting and the bias of a Commission member. McLoughlin also argued the county had violated certain statutory notice provisions relating to the July 6 meeting and the Board had exceeded its authority when it initiated the rezoning of Parcel B. McLoughlin further alleged the Board's actions on Parcel B violated a statute in effect at that time, A.R.S. § 11-829(F), which required the express written consent of a property owner before a property could be downzoned.

¶ 9 The trial court entered partial summary judgment in favor of Pima County, declaring the statute's requirement of owner consent unconstitutional, and we affirmed that decision on appeal. Emmett McLoughlin Realty, Inc. v. Pima County, 203 Ariz. 557, 58 P.3d 39 (App.2002). On remand, McLoughlin moved for summary judgment on the remaining issues, and Pima County cross-moved for summary judgment. The trial court granted Pima County's motion and entered judgment in its favor. McLoughlin now appeals to this court.

VIOLATION OF STATUTORY NOTICE PROVISIONS

¶ 10 McLoughlin argues that Pima County violated the notice provisions of A.R.S. § 11-829 and P.C.C. § 18.91.060(B)(1) by failing to give McLoughlin personal notice of the Board's July 6 meeting.² And McLoughlin argues that, because the results of the July 6 meeting affected Parcels A and C as well as Parcel B, the zoning decision on all three parcels must be declared void.

¶ 11 Section 11-829(C) governs the procedures and notice requirements the County must follow when addressing an application to amend or change a zoning regulation. This statute provides that, after the Board receives an application, it must submit the application to the Commission for a report. See also A.R.S. § 11-806(A). Before the Commission reports to the Board, the Commission must hold at least one public hearing "after giving at least fifteen days' notice thereof by one publication in a newspaper of general circulation in the county seat and by posting of the area included in the proposed change." § 11-829(C). In proceedings involving rezoning, the Commission must also give notice by first class mail to each owner of the property to be rezoned and to all property owners within three hundred feet of the property. § 11-829(C)(1). If anyone objects to the Commission's recommendation or requests a public hearing by the Board, the Board must hold a hearing and give at least fifteen days' notice of this hearing. § 11-829(D).

¶ 12 Likewise, the Pima County Code provides that, fifteen days prior to any public hearing before the Commission, the County must give notice by publication in a newspaper of general circulation and post notice on the property or area to be considered at the hearing. P.C.C. § 18.91.060(B)(1)(a)-(b). And, when the hearing involves an issue of rezoning, the County must also notify by first class mail all property owners within three hundred feet of the property sought to be rezoned. P.C.C. § 18.91.060(B)(1)(c). These same notice and hearing requirements also apply to a public hearing held by the Board of Supervisors. P.C.C. § 18.91.060(B)(2). The notice requirements in the Code are additional to those requirements mandated by statute. See Pima County v. Clapp, 23 Ariz.App. 86, 90, 530 P.2d 1119, 1123 (1975).

¶ 13 McLoughlin acknowledges it received notice of all public hearings that occurred in the formal zoning process relating to the properties. However, McLoughlin asserts that, because the action taken at the Board's July 6 general meeting ultimately affected Parcel B as well as the other parcels, the July 6 meeting was not simply a general meeting of the Board, but instead, amounted to the first hearing on the rezoning of the property. As a result, McLoughlin argues it was entitled to personal notice of this meeting pursuant to § 11-829(C) and P.C.C. § 18.91.060.³

¶ 14 But, under Arizona's statutory rezoning scheme, the Board's July 6 meeting could not have affected any of the three parcels at issue. When the Board receives an application for rezoning, it must refer the application to the Commission for its recommendation. § 11-829(C); Maricopa County Bd. of Supervisors v. Bell 51st Investors, 108 Ariz. 261, 263, 495 P.2d 1315, 1317 (1972)....