Mueller v. City of Phoenix ex rel. Phoenix Bd. of Adjustment II

• Decision Date: 11 December 1967
• Docket Number: No. 8512,8512
• Citation: 435 P.2d 472,102 Ariz. 575
• Parties: Victor F. MUELLER and Estelle Mueller, his wife et al., Appellants, v. CITY OF PHOENIX et rel. PHOENIX BOARD OF ADJUSTMENT II, Appellees.
• Court: Arizona Supreme Court

Page 472

435 P.2d 472

102 Ariz. 575

Victor F. MUELLER and Estelle Mueller, his wife et al., Appellants, v. CITY OF PHOENIX et rel. PHOENIX BOARD OF ADJUSTMENT II, Appellees.

No. 8512.

Supreme Court of Arizona, In Banc.

Dec. 11, 1967.

Murphy, Posner & Franks, by, John R. Franks, Phoenix, for appellants.

Merle L. Hanson, City Atty., Robt. J. Backstein, Asst. City Atty., Phoenix, for City of Phoenix, ex rel. Board of Adjustment II, for appellees.

UDALL, Justice.

The instant matter is before this Court on appeal from the Superior Court judgment entered in favor of the appellee City of Phoenix Board of Adjustment, hereinafter referred to as Board. The appellants are a large group of residents and property owners in the Rancho Solano area of north Phoenix whose properties lie in the immediate general vicinity of the subject property, Arizona Ranch House Inn.

This matter reached the Superior Court on a petition for writ of certiorari wherein the appellants were petitioners. That petition challenged the involved order of the respondent Board as having been rendered in excess of its jurisdiction. The final order of that court held that the Board had acted within its jurisdiction and had not abused its discretion. Thus the lower court affirmed the decisions of the Board and dismissed the appellants' petition.

The pertinent facts are as follows: the Arizona Ranch House Inn was a large old residence on North Central Avenue in Phoenix. The owners then began using the premises during the winter months as a guest home. The facility at that time had less than twenty units. Also, meals were served to guests in a dining room with a capacity of approximately forty. The facilities were then expanded to include nearly twice the original number of apartment units and a dining room capacity for one hundred and fifty. At this time beer and wine were also served on the premises.

In April of 1959 this area was annexed to the City of Phoenix. Following the annexation the city zoned the entire area R--1 (single-family residential). The Arizona Ranch House Inn from the time of the annexation and zoning has occupied a status of nonconforming use in the R--1 area. Since that time there have been numerous hearings before city boards concerning the property with respect to expansion of these nonconforming uses and the propriety of certain allegedly 'accessory' uses. In addition there was also a hearing, for a liquor license to serve spirituous liquors on the premises, held by the State Superintendent of Liquor Licenses and Control. While it appears that each such application before a city board was contested no lawsuit was filed during this time to review the actions of these city boards or of the State Superintendent of Liquor Control.

Thus gradually the character of the Arizona Ranch House Inn evolved from that of a residence to a guest house and finally to a restaurant-nightclub-apartment facility where live entertainment, patio parties, increased noise, lights and billboard advertising were much in evidence.

On February 15, 1962 the Phoenix City Building Inspector by letter notified the Arizona Ranch House Inn that, '* * * the use of a public bar and providing live entertainment on the Ranch House property is in violation of the zoning ordinances.' The Phoenix Mayor on February 21, 1962 by letter also stated that the subject property was in violation of the zoning ordinances with respect to a public bar and live entertainment. With the validity of such uses thus at issue the circumstances were drastically changed by a fire which occurred on the premises of the subject property in August of 1962, destroying a major portion of the facilities.

This matter arises from the efforts of the ownership of the Arizona Ranch House Inn to reconstruct the premises after the fire. Pursuant to this intent an application was made to the Building Inspections Department of the City of Phoenix for the building permits necessary for the planned reconstruction. The application was denied by the Building Inspector because under the Phoenix zoning ordinances the reconstruction of the nonconforming use required a use permit from one of the Phoenix Adjustment Boards. An appeal of the denial was made to the Board. At the hearings conducted pursuant to the applications the appellants appeared in opposition.

The Board conducted several hearings on this particular application and entered its decision and order granting the use permit for reconstruction of the nonconforming use in accordance with the plan and design submitted by the applicant subject to seven stipulations contained in the order. It appears that the order was a compromise determination allowing the appplicant to rebuild and yet restricting the future use in order to placate the opposing neighbors.

The appellants contend that the Board exceeded its jurisdiction in a number of ways and that the Superior Court judgment was erroneous in affirming the Board determination. The contention in general is that the Board by its action sanctioned activity which, in effect, constitutes a complete rezoning of the subject property. That the only legal way in which the subject property could be put to the contested uses would be through a rezoning of the subject premises to a commercial category, such requiring a legislative act on the part of the Phoenix City Council. Therefore that if the Board's action is allowed to stand the zoning ordinances designed to protect residents and property owners in the enjoyment of their rights becomes utterly meaningless and of no force and effect.

Specifically the appellants contend that the Board had no jurisdiction to grant a use permit without making a finding that the use covered by the permit would not be detrimental to the persons residing or working in the vicinity, to adjacent property, to the neighborhood or to the public welfare in general. Appellants contend there was no evidence to sustain such a finding. In searching the record we have found that several local property owners stated they felt that the complained of use would not depreciate their property or be detrimental to it. Specifically, one stated that she felt the rebuilding should not be opposed, that as far as the character of the neighborhood as an environment for her children she felt that it would not hurt or benefit them to have the building there. Another person who spoke stated that he and his brother who lived across the street from the Ranch House Inn had never been disturbed by anything on the subject premises and that they certainly were in favor of the reconstruction. Finally, another local resident said the only fault he saw with the area was that the building had burned down and not been reconstructed, feeling that the area should be built up. Further, one of the two neighbors who spoke in opposition stated that this group had not objected to the original operation but only now had objections to certain types of uses with particular regard to outside entertainment and use and the type of entertainment. In addition, the Board had before it the plans for the proposed reconstruction.

A Board cannot create jurisdiction by finding a fact upon which its jurisdiction depends without evidence in support thereof. Gibbons v. Finley, 77 Ariz. 391, 272 P.2d 610. Thus the sufficiency of evidence is properly reviewable on certiorari in determining whether jurisdictional facts were proved. Hunt v. Norton, 68 Ariz. 1, 198 P.2d 124, 5 A.L.R.2d 668. So while this Court may not weigh the evidence introduced below on which a decision is based in order to determine the correctness of the decision reached it will consider such evidence in so far as it may tend to show jurisdiction or lack thereof to render the decision questioned by the certiorari decision. Civil Service Commission of City of Tucson v. Foley, 75 Ariz. 364, 257 P.2d 384.

In the instant matter we find there was sufficient evidence to support the necessary jurisdictional finding that the use covered by the permit would not be detrimental to the persons residing or working in the vicinity, to adjacent property, to the neighborhood or to the public welfare in general. Such is our determination in light of the circumstance of the presentation of divergent views by groups of neighbors, the qualified objections by the opposition neighbors who apparently took exception only to certain variations within a use category and the presence before the Board of the plans of the proposed reconstruction.

Next the appellants contend that the lower court erred in its judgment finding that the Board acted within its jurisdiction for the reason that the Board had no jurisdiction to grant a permit without making a finding that the use covered by the permit, the manner of conducting the same and any building involved will be in full conformity to any conditions, requirements or standards prescribed therefor by the Phoenix City Zoning Ordinance, § 109(b) 3.

The cited portion of the Phoenix City Code reads in pertinent part as follows:

'3. To hear applications for and to grant those special exceptions designated as use permits where required by this ordinance upon a finding by the board hearing, the application that the use covered by the permit, the manner of conducting the same, and any building which is involved will not be detrimental to persons residing or working in the vicinity, to adjacent property, to the neighborhood or the public welfare in general, and that the same will be in full conformity to any conditions, requirements or standards prescribed therefor by this ordinance or pursuant thereto.' § 109(b).

This Code section provides that the Board make a finding of fact. The Board in its final hearing of this cause ordered the granting of the requested permit based upon the

'* * * testimony and documentary evidence presented to this Board that the use permit requested for the reconstruction of the nonconforming use and the proposed manner...