Minor v. Cochise County, 14476-PR

• Decision Date: 20 February 1980
• Docket Number: No. 14476-PR,14476-PR
• Parties: Warren MINOR et al., Appellants, v. COCHISE COUNTY, Arizona, a body politic, and Kerley Chemical Corporation, Real Party in Interest, Appellees.
• Court: Arizona Supreme Court

Page 309

608 P.2d 309

125 Ariz. 170

Warren MINOR et al., Appellants, v. COCHISE COUNTY, Arizona, a body politic, and Kerley Chemical Corporation, Real Party in Interest, Appellees.

No. 14476-PR.

Supreme Court of Arizona, In Banc.

Feb. 20, 1980.

Rehearing Denied March 25, 1980.

Schorr, Leonard & Felker by Franklin O. Eldridge, Tucson, for appellants.

Beverly H. Jenney, Cochise County Atty. by Thomas E. Dugal, Deputy County Atty., Bisbee, for appellee Cochise County.

Chandler, Tuller, Udall & Redhair by Robert E. Lundquist, Tucson, for appellee Kerley Chemical Corp.

STRUCKMEYER, Chief Justice.

This appeal is from an order of the Superior Court of Pima County dismissing appellants' special action. The Court of Appeals, in a divided opinion, reversed, 125 Ariz. 174, 608 P.2d 313 (App.1979). Opinion of the Court of Appeals vacated, and judgment of the Superior Court affirmed.

Appellants filed a special action in the Cochise County Superior Court on July 8, 1977, alleging that on February 18, 1977 the Planning Department of Cochise County approved an application by the Kerley Chemical Company for a permit for an industrial chemical manufacturing plant which produced ammonium sulphide, a toxic chemical with an offensive odor. The permit was issued by the Planning Department in the belief that the plant was exempt from the County's zoning regulations because of its location within the right-of-way of Southern Pacific Railroad.

Appellants did not appeal to the Board of Adjustment to review the action of the Planning Board, as is provided by Cochise County's zoning ordinance § 2308. Rather, a special action was filed in the Cochise County Superior Court seeking to set aside the permit. The venue of the action was changed to Pima County, and thereafter the Superior Court dismissed the action on the grounds that appellants had failed to exhaust their administrative remedies.

It is a well recognized principle of law that a party must exhaust his administrative remedies before appealing to the courts.

"Courts have established their authority to limit the cases of which they take jurisdiction by rules of ripeness, mootness and standing. Similar is the rule that requires an exhaustion of all available administrative remedies prior to seeking judicial review of an administrative order.

Arizona has recognized this doctrine as a long-settled rule of judicial administration. United Association of Journeymen, etc. v. Marchese, 81 Ariz. 162, 302 P.2d 930, citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638. " Campbell v. Chatwin, 102 Ariz. 251, 257, 428 P.2d 108, 114 (1967).

Appellants argue that when the primary issue involves the resolution of a legal question such as the interpretation of a statute, the exhaustion doctrine is inapplicable because statutory construction and the resolution of a legal issue are functions of the courts.

We, however, do not think that rule has application to the present case. A.R.S. § 11-807 sets forth the powers of the county boards of adjustment. By it, the county board of adjustment has been specifically given the right to interpret county zoning ordinances. The statute, in part, reads:

"B. The board of adjustment may:

1. Interpret the zoning ordinance when the meaning of any word, phrase or section is in doubt * * *

C. Appeals to an adjustment board may be taken by any person who feels that there is error or doubt in the interpretation of the ordinance * * *."

The Legislature could have believed that reasonably intelligent people, even though without formal legal training, could interpret the zoning ordinances, particularly if assisted by legal counsel.

Where a board is specifically empowered to act by the Legislature, the board should act before recourse is had to the courts. Williams v. Bankers National Insurance Co., 80 Ariz. 294, 301, 297 P.2d 344 (1956). The doctrine of exhaustion of administrative remedies applies where a claim is cognizable in the first instance by the administrative agency alone. In such cases, judicial interpretation is withheld until the administrative process has run its course. United States v. Western Pacific R. R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126, 132 (1956).

The foregoing brings us to appellees' point that A.R.S. § 11-808(D) ¹ provides an alternate remedy to the administrative remedy provided by § 11-807. They argue persons aggrieved may pursue either course at will.

It can be seen from an examination of the statute as a whole that it provides for the abatement of structures, uses of land and proposed uses of land that are in violation of the legislative act or an ordinance adopted under the authority of that act. Even were it ultimately determined that the operation of an ammonium sulphide plant by the Kerley Chemical Company was not permitted under the proper interpretation of Cochise County's ordinance, there is no violation of law until the permit has itself been declared invalid and without legal force and effect. Appellants must test the permit by appropriate administrative action.

Appell...