M & M Auto Storage Pool, Inc. v. Chemical Waste Management, Inc., No. 1

CourtCourt of Appeals of Arizona
Writing for the CourtSHELLEY; Stover's; EUBANK, P.J., and VOSS
Citation791 P.2d 665,164 Ariz. 139
Docket NumberCA-CV,No. 1
Decision Date01 May 1990
PartiesM & M AUTO STORAGE POOL, INC., an Arizona corporation, Plaintiff-Appellee, and City of Phoenix, a municipal corporation; City of Phoenix Board of Adjustments, Defendants-Appellees, v. CHEMICAL WASTE MANAGEMENT, INC., Defendant-Appellant. 88-005.

Page 665

791 P.2d 665
164 Ariz. 139
M & M AUTO STORAGE POOL, INC., an Arizona corporation, Plaintiff-Appellee,
and
City of Phoenix, a municipal corporation; City of Phoenix Board of Adjustments, Defendants-Appellees,
v.
CHEMICAL WASTE MANAGEMENT, INC., Defendant-Appellant.
No. 1 CA-CV 88-005.
Court of Appeals of Arizona,
Division 1,
Department E.
May 1, 1990.

Fay & Webb by Richard E. Fay, Phoenix, for plaintiff-appellee.

Page 666

[164 Ariz. 140] Edward P. Reeder, Asst. City Atty., Phoenix, for defendants-appellees.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A. by Scott E. Boehm, Philip C. Gerard and Laurence A. McHugh, Phoenix, for defendant-appellant.

OPINION

SHELLEY, Judge.

This appeal is from a superior court order in a special action proceeding remanding a zoning application to the City of Phoenix Board of Adjustments. The order directs board members to clarify their vote on the application of a hazardous waste storage business to maintain its facility in an A-1 zone or alternatively, that the application be determined by a newly constituted Board of Adjustments. The primary issue on appeal is whether the trial court abused its discretion in refusing to affirm the decision of the Board of Adjustments.

We reverse the order of the trial court and reinstate the board's decision.

FACTS AND PROCEDURAL HISTORY

Chemical Waste Management, Inc. (Chemical Waste) stores hazardous industrial wastes at its business site in Phoenix pending transfer of the waste to approved disposal facilities in California. These wastes are neither explosive nor radioactive.

In December, 1984, a neighbor of Chemical Waste sent a letter to: "Mr. Atonna, City of Phoenix Planning," inquiring about the safety of Chemical Waste's operation. The letter was forwarded to Zoning Enforcement Supervisor Paul Secrest. Secrest asked City of Phoenix Zoning Administrator Peter Atonna to determine whether Chemical Waste's operation was a permitted use in an A-1 zone.

The zoning administrator conducted a hearing on January 31, 1985, and issued his opinion that Chemical Waste's business was a permitted use in the A-1 district.

M & M Auto Storage Pool, Inc. (M & M), an adjacent property owner, appealed the zoning administrator's ruling to the City of Phoenix Board of Adjustments pursuant to A.R.S. § 9-462.06(G)(1).

The Board of Adjustments conducted a hearing on April 4, 1985, and approved the zoning administrator's determination that Chemical Waste's facility was an appropriate use in an A-1 zone. M & M filed a special action complaint in superior court pursuant to A.R.S. § 9-462.06(K). The special action complaint alleged that the board's decision was arbitrary and capricious.

The superior court remanded this matter back to the Board of Adjustments for clarification of its vote or for reconsideration by a newly constituted board and later denied Chemical Waste's motion to reconsider the order. The City of Phoenix, the Board of Adjustments, and Chemical Waste were defendants below, but only Chemical Waste filed a notice of appeal. The parties stipulated that the remand would be stayed pending the appeal.

JURISDICTION

M & M argues that because the trial court's order remanded the case, it was not a final decision and cannot be reviewed by this court. We disagree.

We find no Arizona appellate decisions addressing the precise jurisdictional argument raised by M & M. However, the procedural posture of this case is analogous to that of the parties in Caldwell v. Arizona State Bd. of Dental Examiners, 137 Ariz. 396, 670 P.2d 1220 (App.1983). Caldwell sought review of a decision of the Arizona State Board of Dental Examiners to suspend his certificate for the practice of denture technology. The superior court determined that the board had not followed proper procedures, and remanded the case to the board for another hearing. Both Caldwell and the board filed appeals from the remand order. This court affirmed the trial court's decision without discussion of its jurisdiction.

Other states with statutory review procedures similar to A.R.S. § 9-462.06 permit appellate review of trial court orders remanding

Page 667

[164 Ariz. 141] zoning matters to administrative boards. See generally 4 R. Anderson American Law of Zoning § 27.39 (3d ed. 1986). But see North American Holding Corp. v. Murdock, 6 A.D.2d 596, 180 N.Y.S.2d 436 (1958), aff'd 6 N.Y.2d 902, 160 N.E.2d 926, 190 N.Y.S.2d 708 (1959).

The superior court's order was a final determination of the parties' rights under its special action authority. The order stated:

IT IS THEREFORE ORDERED that this appeal be remanded to the CITY OF PHOENIX BOARD OF ADJUSTMENTS to have the members of the BOARD clarify on the record their vote on the application of CHEMICAL WASTE MANAGEMENT, INC. to maintain its facility in the A-1 zoned area, and in the event the BOARD OF ADJUSTMENTS is unable to clarify its vote of April 4, 1985, that the application of CHEMICAL WASTE MANAGEMENT, INC. as aforesaid be determined by a newly constituted Board of Adjustments. [Emphasis in original.]

The special action has been completed except as to this appeal. If the parties returned to the Board of Adjustments pursuant to the remand order, they would have no further recourse to the superior court in this special action. If either party was dissatisfied with the board's action after remand, that party would have to file a new special action in superior court. Therefore, the superior court has entered a final order in a special proceeding commenced in superior court for purposes of A.R.S. § 12-2101(B).

We conclude that we have jurisdiction to review the superior court's order.

FAILURE TO PROSECUTE

Chemical Waste contends that this case should never have reached the point at which Judge Stover issued her remand order. It contends that Judge Stover abused her discretion by setting aside a prior order of dismissal which had been entered pursuant to Rule V, Uniform Rules of Practice of the Superior Court of Arizona (hereinafter Uniform Rules).

M & M argues that this is not an appealable order. This is incorrect. An order denying or granting a motion to set aside a judgment under Rule 60(c), Arizona Rules of Civil Procedure, is appealable as a "special order made after final judgment." A.R.S. § 12-2101(C). See Sullivan & Brugnatelli Advertising Co., Inc. v. Century Capital Corp., 153 Ariz. 78, 79, 734 P.2d 1034, 1035 (App.1986); Cline v. Ticor Title Ins. Co., 154 Ariz. 343, 344, 742 P.2d 844, 845 (App.1987). We therefore consider the merits of Chemical Waste's argument.

The court administrator's office sent a notice to M & M on February 13, 1986, stating that the case would be placed on the inactive calendar for dismissal on May 13, 1986, unless a motion to set the certificate of readiness was filed. However, before May 13, 1986, the city and Chemical Waste filed motions for summary judgment. On April 22, 1986, Judge Stover denied the motions for summary judgment by minute entry order. In the minute entry, Judge Stover stated that the case should be remanded to the Board of Adjustments for clarification. However, M & M did not file a cross motion for summary judgment or take other action to obtain a judgment.

On June 10, 1986, the court administrator dismissed M & M's special action for lack of prosecution under Rule V, Uniform Rules. The order was signed by Judge Noel Fidel on behalf of Judge Stover.

On June 19, 1986, M & M moved to set aside the dismissal, arguing that it had relied on the April 22, 1986, order and requested a remand order.

M & M argued that Rule V does not apply in...

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50 practice notes
  • High Ridge Hinkle Joint Venture v. City of Albuquerque, Nos. 14606
    • United States
    • New Mexico Court of Appeals of New Mexico
    • October 26, 1994
    ...to the federal courts, although they have not discussed federal case authority. M & M Auto Storage Pool v. Chemical Waste Management, 164 Ariz. 139, 791 P.2d 665, 666-67 (App.1990) (perhaps relying on specific statute relating to appeal from "special actions"); Scott v. City of Englewood, 6......
  • Dougall v. Dougall, No. 2 CA–CV 2013–0056.
    • United States
    • Court of Appeals of Arizona
    • December 18, 2013
    ...as a “special order made after final judgment.” A.R.S. § 12–2101(A)(2); see M & M Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141, 791 P.2d 665, 667 (App.1990) (discussing comparable Rule 60(c), Ariz. R. Civ. P.); 5 [316 P.3d 595]In re Marriage of Dorman & Cabrera, 19......
  • Ulibarri v. Gerstenberger, No. 1
    • United States
    • Court of Appeals of Arizona
    • May 20, 1993
    ...by the trial court's failure to find excusable neglect or inadvertence under these facts. M & M Auto Storage Pool v. Chem. Waste, 164 Ariz. 139, 142, 791 P.2d 665, 668 There is a presumption in favor of hearing a case on the merits. Almarez, 146 Ariz. at 191, 704 P.2d at 832. In ruling on a......
  • Eaton v. AHCCCS, No. 2 CA-CV 2003-0068.
    • United States
    • Court of Appeals of Arizona
    • November 26, 2003
    ...the same record, we may substitute our opinion for that of the superior court. M & M Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 143, 791 P.2d 665, 669 (App.1990). And when consideration of the administrative decision involves the legal interpretation of a statute, th......
  • Request a trial to view additional results
51 cases
  • High Ridge Hinkle Joint Venture v. City of Albuquerque, Nos. 14606
    • United States
    • New Mexico Court of Appeals of New Mexico
    • October 26, 1994
    ...to the federal courts, although they have not discussed federal case authority. M & M Auto Storage Pool v. Chemical Waste Management, 164 Ariz. 139, 791 P.2d 665, 666-67 (App.1990) (perhaps relying on specific statute relating to appeal from "special actions"); Scott v. City of Englewood, 6......
  • Dougall v. Dougall, No. 2 CA–CV 2013–0056.
    • United States
    • Court of Appeals of Arizona
    • December 18, 2013
    ...as a “special order made after final judgment.” A.R.S. § 12–2101(A)(2); see M & M Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141, 791 P.2d 665, 667 (App.1990) (discussing comparable Rule 60(c), Ariz. R. Civ. P.); 5 [316 P.3d 595]In re Marriage of Dorman & Cabrera, 19......
  • Ulibarri v. Gerstenberger, No. 1
    • United States
    • Court of Appeals of Arizona
    • May 20, 1993
    ...by the trial court's failure to find excusable neglect or inadvertence under these facts. M & M Auto Storage Pool v. Chem. Waste, 164 Ariz. 139, 142, 791 P.2d 665, 668 There is a presumption in favor of hearing a case on the merits. Almarez, 146 Ariz. at 191, 704 P.2d at 832. In ruling on a......
  • Eaton v. AHCCCS, No. 2 CA-CV 2003-0068.
    • United States
    • Court of Appeals of Arizona
    • November 26, 2003
    ...the same record, we may substitute our opinion for that of the superior court. M & M Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 143, 791 P.2d 665, 669 (App.1990). And when consideration of the administrative decision involves the legal interpretation of a statute, th......
  • Request a trial to view additional results

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