Haines v. City of Phoenix

Decision Date20 March 1986
Docket NumberNo. 2,CA-CIV,2
Citation727 P.2d 339,151 Ariz. 286
PartiesRandolph J. HAINES, Appellant/Cross-Appellee, v. CITY OF PHOENIX, a political subdivision of the State of Arizona; and the Adams Group, Inc., an Arizona corporation, Appellees/Cross-Appellants. 5657.
CourtArizona Court of Appeals
OPINION

HATHAWAY, Chief Judge.

Appellant contests the trial court's granting of summary judgment in affirmance of the City of Phoenix's (city) authority to rezone the parcel in controversy. Appellees cross-appeal and challenge the trial court's finding that the city has adopted a general or specific plan of urban development. We agree with the trial court on both counts and affirm.

On January 1, 1974, Arizona's Urban Environment Management Act (act) became effective. Laws 1973, Chapter 178; A.R.S. § 9-461 et seq. The act requires municipalities to adopt long-range, general plans for urban development. A.R.S. § 9-461.05(A). The act also authorizes specific plans. A.R.S. § 9-461.08. The act requires municipal zoning ordinances be consistent with the general plans. § 9-462.01(E). On July 3, 1979, the city adopted two plans--the Phoenix Concept Plan 2000 and the Interim 1985 Plan. It is disputed whether these plans are general or specific plans as defined by the statute.

This action arose from the Phoenix City Council's granting of a "height waiver" for a highrise office project that is proposed to be constructed by appellee Adams Group on 14.48 acres of land on Central Avenue between Glenrosa and Turney avenues in Phoenix. The property was zoned C-2H-R (intermediate commercial highrise) and subject to a 250-foot highrise limitation. The 1985 plan also limits to 250 feet buildings in the area in which this parcel is located.

On July 29, 1983, the Adams Group submitted an application to amend the city zoning ordinance to permit a building on the parcel in excess of the 250-foot height limitation. The rezoning application was heard by the planning commission on November 16, 1983. That body recommended denial by a 3 to 2 vote. Pursuant to § 108-J.1 of the city zoning ordinance the Adams Group requested the city council to hold a public hearing on the application and not to adopt the planning commission's recommendation. Two hearings were held, on December 19, 1983 and February 6, 1984. On February 6, the city council approved a rezoning which allowed the Adams Group to erect a 500-foot building. Appellant then filed this action alleging the city council's action is inconsistent with the general or specific plans and therefore is in violation of A.R.S. § 9-462.01(E). Appellees argue that the city had not adopted either a general or specific plan at the time of the city council action and the only issue before the city council was whether there was compliance with § 412-B.2-F(1) of the Phoenix Zoning Ordinance, permitting height amendments. 1

It is without dispute that the city council complied with § 412-B.2-F(1). The trial court, on August 17, 1984, granted appellant partial summary judgment finding that the city had adopted a general or specific plan. On November 26, 1984, however, the trial court entered summary judgment finding that the city council's action did not violate A.R.S. § 9-462.01(E), and therefore dismissed appellant's complaint. Appellant appealed and appellees cross-appealed.

Appellant raises one issue on appeal: The trial court erred in finding that the rezoning was in compliance with A.R.S. § 9-462.01(E). Appellees raise two issues on appeal: (1) Phoenix has not adopted a general or specific plan and is not subject to the limitations of § 9-462.01(E) and (2) in any event, the actions of the city council were in compliance with both the Concept Plan 2000 and the 1985 plan.

I. HAS THE CITY ADOPTED A GENERAL OR SPECIFIC PLAN?

The act does not establish a timetable for the adoption of a general plan. Therefore, if the city was found not to have a general plan at this time, it would not be in violation of the act absent a showing of bad faith.

A.R.S. § 9-461(1) states a general plan means:

"... [A] municipal statement of land development policies, which may include maps, charts, graphs and text which set forth objectives, principles and standards for local growth and redevelopment enacted under the provisions of this article or any prior statute."

A.R.S. § 9-461(5) states a specific plan means:

"... [A] detailed element of the general plan enacted under the provisions of this article or a prior statute."

It is clear that both the Concept Plan 2000 and the Interim Plan 1985 meet the definition for a general plan. Additionally, Interim Plan 1985 could be viewed as a specific plan for the implementation of the general plan pronounced in Concept Plan 2000. Concept Plan 2000 establishes the policy of dividing the city into villages, each containing a core, gradient and periphery. Interim Plan 1985 establishes specific criteria for the implementation of that policy in the Encanto Area in which this dispute occurred. Additionally, there is not any evidence that these two plans were not adopted under the provisions of the article pursuant to A.R.S. § 9-461.06. The real debate concerns A.R.S. § 9-461.05, which enunciates the scope of a general plan.

A.R.S. § 9-461.05(C) and (D) require the general plan to contain nine distinct elements. Those elements are:

1. A land use element.

2. Circulation element.

3. Conservation element.

4. Recreation element.

5. Public services and facility element.

6. Public buildings element.

7. Housing element.

8. Conservation rehabilitation and redevelopment element.

9. Safety element.

A review of the two plans establishes that some of the above-required elements have not been addressed by either Concept Plan 2000 or Interim Plan 1985. The question before this court, therefore, is whether the missing elements negate Concept Plan 2000 and Interim Plan 1985 as general or specific plans or are irrelevant to the existence of a plan and establish only that the city's plans are presently incomplete. We find the latter course of reasoning applies.

While these plans are probably not satisfactory in their completeness, they are clearly plans according to the statutory definition. Appellees' reasoning would permit the city to perpetually avoid urban planning by leaving out any element or any subdivision of an element defined in § 9-461.05. This would produce the untenable result of the slightest omission causing the city to have no plan. 2 Additionally, appellees argue that Concept Plan 2000 stated it was only the beginning of the development of a general plan and argue it cannot be interpreted to be a general plan. A rose by any other name, however, still smells as sweet, and the city cannot avoid implementation of the statute by creating a plan and then stating it is not one. Concept Plan 2000 and Interim Plan 1985 fit the statutory definitions and are therefore general and specific plans as defined by A.R.S. § 9-461(1, 5).

II. WAS THE REZONING IN CONFORMITY WITH THE PLAN?

A. Applicability of A.R.S. § 9-462.01(E). A.R.S. § 9-462.01(E) states:

"All zoning ordinances or regulations adopted under this article shall be consistent with the adopted general or specific plans of the municipality...."

We must consider whether an amendment to a rezoning ordinance, such as we have in the current situation, falls under the mandate of this statute which only specifically states it applies to "zoning ordinances or regulations." While there are no Arizona decisions on point, other jurisdictions have held the requirement of conformity to the general plan is applicable to amendments as well as to the original zoning ordinance. See e.g., Hines v. Pinchback-Halloran Volkswagen, Inc., 513 S.W.2d 492 (Ky.1974); Udell v. Haas, 21 N.Y.2d 463, 288 N.Y.S.2d 888, 235 N.E.2d 897 (1968); Roseta v. Washington County, 254 Or. 161, 458 P.2d 405 (1969); Putney v. Abington Township, 176 Pa.Super. 463, 108 A.2d 134 (1954). The above decisions reason that the legislature intended to protect landowners in the populace from arbitrary and impulsive use of the zoning power and that such a safeguard would be meaningless unless applied to amendments of the ordinance. Other jurisdiction have held, however, that where the amendment itself constitutes a change in the comprehensive plan the limiting statute is not applicable. See e.g., Shell Oil Company v. Edwards, 263 Ala. 4, 81 So.2d 535, cert. den. 350 U.S. 885, 76 S.Ct. 139, 100 L.Ed. 780 (1955); Pierrepont v. Zoning Commission of Town of Ridgefield, 154 Conn. 463, 226 A.2d 659 (1967). The current situation is controlled by the first line of cases inasmuch as the record supports no such intention by the city council. Therefore, the present amendment is valid only if it is consistent with the general and specific plans. We save for another time the issue of whether the effect of § 9-462.01(E) is vitiated if the city council attempts both to amend the zoning ordinance and the general plan at the same time. See Town of Bedford v. Village of Mt. Kisco, 33 N.Y.2d 178, 351 N.Y.S.2d 129, 306 N.E.2d 155 (1973), reargument den. 34 N.Y.2d 668, 355 N.Y.S.2d 1027, 311 N.E.2d 655 (1974); Graham v. City of Raleigh, 55 N.C.App. 107, 284 S.E.2d 742 (1981), rev. den. 305 N.C. 299, 290 S.E.2d 702 (1982).

B. Is the amendment consistent with the general and specific plan? Normally the level of judicial review of a zoning ordinance or amendment is the rational basis test. See Wait v. City of Scottsdale, 127 Ariz. 107, 618 P.2d 601 (1980). This test is utilized because zoning or rezoning is a legislative act...

To continue reading

Request your trial
11 cases
  • Washburn v. Pima County
    • United States
    • Arizona Court of Appeals
    • 19 Diciembre 2003
    ...validates statutes even if the legislative body did not consider the reasons articulated by the court." Haines v. City of Phoenix, 151 Ariz. 286, 290, 727 P.2d 339, 343 (App.1986). While reasonable minds might differ over whether government should impose these types of design criteria on th......
  • Washburn v. Pima County
    • United States
    • Arizona Court of Appeals
    • 1 Enero 1999
    ...validates statutes even if the legislative body did not consider the reasons articulated by the court." Haines v. City of Phoenix, 151 Ariz. 286, 290, 727 P.2d 339, 343 (App. 1986). While reasonable minds might differ over whether government should impose these types of design criteria on t......
  • BRUNSWICK FAIRFIELD LLC. v. TOWN of BRUNSWICK
    • United States
    • Maine Supreme Court
    • 18 Marzo 2011
    ...could have determined that the rezoning was in basic harmony with the [comprehensive] plan....'") (citing Haines v. City of Phoenix, 151 Ariz. 286, 727 P.2d 339, 344 (Ariz. App. 1986)) (emphasis original). The Town Council also had evidence before it of the impact the proposed development w......
  • Brunswick Fairfield, LLC v. Town of Brunswick
    • United States
    • Maine Superior Court
    • 18 Marzo 2011
    ... ... light of the evidence presented to it ... " McMillan ... v. City of Portland. 2005 Me. Super. LEXIS 164, *10 (Me ... Super. Nov. 22, 2005) (Crowley, J.); ... rezoning was in basic harmony with the [comprehensive] ... plan ... "') ( citing Haines v. City of ... Phoenix, 151 Ariz. 286, 727 P.2d 339, 344 (Ariz. App ... 1986)) ... ...
  • Request a trial to view additional results
23 books & journal articles
  • 10.3. STANDARDS OF REVIEW OF ZONING ORDINANCES.
    • United States
    • State Bar of Arizona Land Use Law (2021 Ed.) 10 Judicial Review of Zoning Ordinances and Decisions
    • Invalid date
    ...Dev. Co. v. City & County of Honolulu, 649 F. Supp. 926 (D. Hawaii 1986), aff'd, 898 F.2d 112 (9th Cir. 1990) Haines v. City of Phoenix, 151 Ariz. 286, 727 P.2d 339 (App. 1986) 10.3.4. Fairly debatable test. If the validity of a legislative classification for zoning purposes is fairly debat......
  • 10.1. VALIDITY OF ZONING REGULATIONS.
    • United States
    • State Bar of Arizona Land Use Law (2021 Ed.) 10 Judicial Review of Zoning Ordinances and Decisions
    • Invalid date
    ...small island amid land zoned for dissimilar uses) City of Phoenix v. Fehlner, 90 Ariz. 13, 363 P.2d 607 (1961) Haines v. City of Phoenix, 151 Ariz. 286, 727 P.2d 339 (App. 1986) 10.1.10. Impairment of contract. Whether a government regulation constitutes an impairment of contract within the......
  • Appendix A Table of Authorities
    • United States
    • State Bar of Arizona Land Use Law Appendix A Table of Authorities
    • Invalid date
    ...U.S. 394, 36 S. Ct. 143, 60 L. Ed. 348 (1915)......................................................... 10-13Haines v. City of Phoenix, 151 Ariz. 286, 727 P.2d 339 (App. 1986)...................... 1-3, 3-5, 3-7, 3-8, 4-6, 10-32, 10-41Harris v. County of Riverside, 904 F.2d 497 (9th Cir. 199......
  • APPENDIX A: TABLE OF AUTHORITIES
    • United States
    • State Bar of Arizona Land Use Law (2021 Ed.) Appendix A Table of Authorities
    • Invalid date
    ...36 S. Ct. 143, 60 L. Ed. 348 (1915)......................................................................10-16 Haines v. City of Phoenix, 151 Ariz. 286, 727 P.2d 339 (App. 1986)............................. 1-4, 3-6, 3-8, 3-9, 4-7, 10-37, 10-47 Harris v. County of Riverside, 904 F.2d 497 (9......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT