Murphy v. Town of Chino Valley, 1

• Decision Date: 31 October 1989
• Docket Number: CA-CV,No. 1,1
• Citation: 163 Ariz. 571,789 P.2d 1072
• Parties: Amos MURPHY and Connie Murphy, husband and wife, Plaintiffs-Appellees, v. TOWN OF CHINO VALLEY, a political subdivision of the State of Arizona, Defendant-Appellant. 88-012.
• Court: Arizona Court of Appeals

Page 1072

789 P.2d 1072

163 Ariz. 571

Amos MURPHY and Connie Murphy, husband and wife, Plaintiffs-Appellees, v. TOWN OF CHINO VALLEY, a political subdivision of the State of Arizona, Defendant-Appellant.

No. 1 CA-CV 88-012.

Court of Appeals of Arizona Division 1, Department B.

Oct. 31, 1989.

Reconsideration Denied Jan. 12, 1990.

Review Denied May 1, 1990. ^*

[163 Ariz. 572] Stan A. Lehman, Prescott, and Paul G. Ulrich, P.C., Phoenix, for defendant-appellant.

Toci, Murphy, Lutey & Beck by Thelton D. Beck, Prescott, for plaintiffs-appellees.

OPINION

VOSS, Judge.

This is an appeal from summary judgment in superior court reversing a zoning decision of the Town of Chino Valley Board of Adjustments (the board). We reverse and remand for reinstatement of the board's decision.

FACTS

Amos and Connie Murphy own a residence and land in the Town of Chino Valley. In 1984 the zoning on their property was changed from agricultural to R-1 residential as part of a new zoning code adopted by Chino Valley. Over a period of time, the Murphys built a roping arena on their property that was used by their family and friends for riding horses and roping cattle. The arena has a corral, cattle runs, release shoots and seven 30'-40' poles with high intensity lights. The number of people participating at roping events was estimated to vary from 6-7 to as many as 120.

In 1985 Chuck Hudson, an adjacent property owner, complained to the town manager/zoning administrator, that the Murphys' roping arena did not comply with Chino Valley's zoning code. Acting on the complaint, the zoning administrator inquired into whether the facility was in operation prior to the adoption of the 1984 code. Many responses were received, including 28 statements indicating the arena had been utilized by family and friends before 1984. At the conclusion of the inquiry the zoning administrator wrote a letter to Hudson advising him she had concluded that the roping arena was in operation under the former zoning code and was therefore "grandfathered in" under the current code. She advised Hudson that he could appeal her decision to the board.

Hudson filed a notice of appeal of the zoning administrator's decision to the board. The appeal was considered at a special board meeting. The board heard testimony from approximately 17 witnesses, including Hudson and the Murphys. The meeting was tape recorded, but the tape ended before completion of the public hearing and prior to the board's decision. The board voted unanimously to require the Murphys to apply for a conditional use permit.

Thereafter, the Murphys filed a petition for special action in superior court requesting review of the board's decision. Cross motions for summary judgment were filed by both Chino Valley and the Murphys. The trial court granted the Murphys' motion, finding that the roping arena had been in existence before the enactment of the 1984 zoning ordinance and was a permitted use under the prior zoning ordinance. It declined to decide whether the arena could exist under the new code except as a legal nonconforming use. The court entered an order reversing the decision of the board, reinstating the ruling of the zoning administrator and awarding attorney's fees against the town for $14,487 plus costs.

JURISDICTIONAL ISSUES

Jurisdiction of the Trial Court

Chino Valley contends the trial court lacked jurisdiction to hear the special action because Hudson was the real party in interest and was not joined as a defendant. First, Chino Valley compares the board proceeding to a judicial proceeding in which the board acted as the judge resolving a dispute between two parties and contends that Rule 2, Rules of Procedure for Special Actions, applies to this situation and requires that Hudson be joined as a defendant. Rule 2 provides:

(a) [Parties]. Any person who previously could institute an application for a writ of mandamus, prohibition, or certiorari may institute proceedings for a special action. The complaint shall join as a defendant the body, officer, or person against whom relief is sought. If any public body, tribunal, or officer is named as a defendant, the real party or parties in interest shall also be joined as defendants.

It is clear under Rule 2 that where a party to a judicial proceeding files a special action to challenge a trial judge's determination that favors the opposing party, the opposing party must be joined as a defendant. See generally 1 Arizona Appellate Handbook, § 7.5.1 at 7-9 (2d ed. 1983). Cf. Silver v. Rose, 135 Ariz. 339, 343, 661 P.2d 189, 193 (App.1982). The trial judge must also be made a respondent. See Hickox v. Superior Court In and For Maricopa County, 19 Ariz.App. 195, 505 P.2d 1086 (1973).

A trial judge is expected to be impartial rather than assume an adversary position in a special action. See Dunn v. Superior Court In and For Maricopa County, 160 Ariz. 311, 772 P.2d 1164 (App.1989). A board of adjustment, however, must regulate land use, which may place it in an adversary position to one of the parties appearing before it. Thus, this action is not comparable to the type of judicial proceeding contemplated by Rule 2. The record in this appeal supports the conclusion that the board assumed an adversary position in these proceedings; therefore the board is a real party in interest, properly before the court in this matter.

Chino Valley also points out that where one of two parties to a controversy in a hearing before the Registrar of Contractors brings an appeal to superior court under the Administrative Review Act, A.R.S. § 12-901 et seq., failure to join the opposing party deprives the trial court of jurisdiction. International Brotherhood of Electrical Workers v. Kayetan, 119 Ariz. 508, 581 P.2d 1158 (App.1978). Chino Valley argues by analogy that the parties to a dispute before a municipal body are necessary parties to a special action under A.R.S. § 9-462.06(K).

This analogy also fails because the board is not a neutral arbitrator and is acting to protect Hudson's interest. This court held in a similar context that an administrative agency can be an aggrieved party with standing to challenge an adverse ruling of the Superior Court. Burrows v. Taylor, 129 Ariz. 212, 630 P.2d 35 (App.1981).

We have found a limited number of cases concerning whether a party who complains to a board of adjustment may also be a real party in interest. See generally 3 Rathkopf, The Law of Zoning and Planning § 42.05 (4th ed. 1988). The following cases hold that objecting land owners are not necessary or indispensable parties: Peoples Trust Company v. Board of Adjustment, 60 N.J.Super. 569, 160 A.2d 63 (1959) (It might interfere with free and open discussion before boards if property owners, by participating, risked being parties to subsequent judicial proceedings); Nepi v. Lammot, 52 Del. 281, 156 A.2d 413 (1959). The cases indicate that the only indispensable party to an appeal from a board of adjustment's decision is the board of adjustment. Id; Zoning Board of Adjustment of New Castle County v. Dragon Run Terrace, Inc., 59 Del. 175, 216 A.2d 146 (1965); see also Tazza v. Planning and Zoning Commission, 164 Conn. 187, 319 A.2d 393 (1972) (The zoning commission is the proper party to represent the public interest and to defend its decisions).

We agree that on an appeal or special action review of a board of adjustment decision, the board and the property owner directly subject to the board decision are necessary parties. Merely taking a position before the board as an abutting landowner or neighbor does not per se make one a party to further litigation. The board represents the interests of the community at large. Further, the fact a complainant is not an indispensable party does not effect standing to intervene. There could be facts under which a complainant's interest in the outcome require that he be made a party. However, that case is not before us. We conclude the trial court had jurisdiction to consider the Murphys' petition for special action relief.

Jurisdiction of the Court of Appeals

The Murphys argue that this court must dismiss Chino Valley's appeal because it is not an "aggrieved party" within the meaning of Rule 1, Arizona Rules of Civil Appellate Procedure. We find no merit to this argument. If for no other reason than the award of attorney's fees directed against the Town of Chino Valley, the town is an aggrieved party entitled to appeal this award. Further, the town has a legitimate interest in sustaining the validity of the procedures leading to the board's decision, as well as the decision itself, which gives it standing to appear in this court. See Dunn, 160 Ariz. 311, 772 P.2d 1164 (App.1989); Camelback Contractors, Inc. v. Industrial Commission, 125 Ariz. 205, 608 P.2d 782 (App.1980).

STANDARD OF REVIEW

In a special action to review a municipal board of adjustment decision, the trial court's primary purpose is to determine whether the board's decision was arbitrary and capricious or an abuse of discretion. Blake v. City of Phoenix, 157 Ariz. 93, 754 P.2d 1368 (App.1988). An appellate court is bound by the same standard of review as the superior court in reviewing the board's decision. City of Phoenix v. Superior Court In and For Maricopa County, 110 Ariz. 155, 158, 515 P.2d 1175, 1178 (1973); Gannett Outdoor Company v. City of Mesa, 159 Ariz. 459, 768 P.2d 191 (App.1989). Our review is limited to finding error, and we may not substitute our opinion of facts for that of the board. If there is credible evidence to support the board's decision, we must affirm. Id. However, where the issues involve statutory interpretation, the trial court and this court are free to draw their own conclusions on whether an agency misinterpreted the law. Eshelman v. Blubaum, 114 Ariz. 376, 378, 560 P.2d 1283, 1285 (App.1977).

BASIS FOR THE TRIAL COURT'S DECISION

Chino Valley contends the trial court ruled that the board erred in holding a de novo...