Neal v. City of Kingman
| Decision Date | 17 September 1991 |
| Docket Number | No. CV-90-0490-PR,CV-90-0490-PR |
| Citation | 817 P.2d 937,169 Ariz. 133 |
| Parties | Richard NEAL, Plaintiff/Appellee/Cross-Appellant, v. CITY OF KINGMAN, an Arizona, political subdivision; Board of Adjustment of the City of Kingman, Arizona, an administrative body, Defendants/Appellants/Cross-Appellees. |
| Court | Arizona Supreme Court |
The Zoning Administrator of the City of Kingman found that a highway sign advertising a McDonald's restaurant did not comply with the applicable Kingman sign ordinance. The sign owner, Richard Neal, appealed to the Kingman Board of Adjustment, which affirmed the Administrator's finding. On review by special action, the superior court affirmed the Board, but independently held that the sign owner had a vested right to maintain the sign as erected, even though it did not comply with the sign ordinance. On appeal by the City, a majority of the court of appeals affirmed. One judge dissented, believing that the theory used by the majority to affirm was inapplicable and also was unavailable because it had not been raised or litigated below. We granted the City's petition for review and have jurisdiction under Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24. We reverse the trial court.
Kingman's sign ordinance requires that an "off-premises" sign "must be oriented toward the street frontage of the zone in which it is located." City of Kingman, Ariz., Zoning Ord. 135, section XXV, Off-Premise Sign, § 5. Neal owns a McDonald's restaurant located near the intersection of Highway 66 and Interstate 40 (I-40) in Kingman. He wanted to erect two off-premises signs advertising the McDonald's, one on property in the I-40 zone, and one on property in the Highway 66 zone. A permit for the sign in the I-40 zone was issued without incident and is not involved in this appeal. The Administrator originally refused to issue a permit to Neal for the sign in the Highway 66 zone because the sign Neal proposed was oriented toward I-40 rather than toward Highway 66.
After the original rejection, a second permit was prepared. The Administrator asked Neal to sign a list of conditions attached to the permit, one of which read that the sign Neal refused to sign the list of conditions. Instead, he spoke to the Administrator's supervisor, explaining that he would not sign the permit or the list of conditions because he did not believe the ordinance required signs to be perpendicular to the controlling roadway. After the supervisor wrote on the list of conditions: "Sign will comply with the requirements of sign code, Dennis Roberts, 5/12/86," Neal signed and paid for the permit.
During the construction of the sign, there was one inspection by the City that did not result in any action. After the sign was erected, however, the Administrator determined that the sign was oriented toward I-40, rather than toward Highway 66. He therefore "red tagged" the sign to prohibit its use.
Neal appealed that determination, and requested a hearing before the Board to challenge the Administrator's finding that his sign was not properly oriented. At the hearing, Neal argued that his sign was, in fact, oriented toward Highway 66 within the meaning of the ordinance. The Administrator maintained that it was oriented toward I-40. The Board agreed with Neal that the ordinance did not require complete perpendicularity in order to comply with the ordinance, but also agreed with the Administrator that Neal's sign was, in fact, oriented toward I-40 rather than toward Highway 66.
The evidence presented at the Board hearing indisputably shows that the sign was nearly perpendicular to I-40 and was therefore easily readable by motorists travelling in either direction on I-40. The sign was at such an angle to Highway 66, however, that, although it was possible for motorists travelling northeasterly on that highway to read it, it was very difficult for motorists travelling the other way on Highway 66 to see it. Because the sign was oriented toward I-40 rather than toward Highway 66, the Board unanimously upheld the Administrator's finding that the sign violated the Kingman code.
Pursuant to A.R.S. § 9-462.06(J) (now § 9-462.06(K)), Neal filed a special action in the superior court to review the Board's action. In his pleadings, as analyzed by the trial court, he alleged that (1) the Board had abused its discretion in affirming the decision of the Zoning Administrator, (2) he had acquired a vested right to maintain the sign as erected, and (3) the Board had unconstitutionally discriminated against him.
The discrimination claim was abandoned, and the trial court ruled that the Board had not abused its discretion in affirming the Administrator's finding of noncompliance. That left the vested rights issue.
The City contended that the vested rights issue was not properly in the case because Neal had not raised it in his appeal to the Board. In response, Neal contended that he did not need to present the vested rights issue to the Board, and that the Board would have lacked jurisdiction to consider the issue had it been presented. Although the City objected to any trial de novo and argued that review was limited to the record, the superior court ordered a separate trial on the vested rights issue. Following trial, based upon answers to interrogatories from an advisory jury, the trial court entered judgment declaring that Neal had a vested right to maintain the sign as erected. The City appealed, and Neal cross-appealed.
After dealing with issues relating to the constitutionality and construction of the ordinance, the court of appeals addressed the vested rights issue. First, the court held that the City had timely asserted in the trial court that Neal had waived any vested rights claim by not raising it before the Board. 167 Ariz. 574, 578, 810 P.2d 572, 576. The court then determined, contrary to the trial court's ruling, that Neal had in fact raised, albeit inartfully, the vested rights issue before the Board. Id. at 578-579, 810 P.2d at 576-577. The court concluded that, although the Board had authority to hear and determine a claim of vested rights, it had failed or refused to do so and, therefore, the superior court trial on the issue was appropriate. Id. at 579-580, 810 P.2d at 577-578.
Concluding that the vested rights issue was properly before it, the court of appeals addressed its merits. The majority noted that the case did not "fit neatly" within existing vested rights cases, and that there was "considerable confusion manifested by both parties as to what theory Neal was proceeding under." Id. at 580, 810 P.2d at 578. The court then affirmed on a theory of equitable estoppel.
One judge dissented, stating that "the majority finds a vested right where one cannot exist, and reaches for a remedy, equitable estoppel, which was never pled or tried at the administrative or trial court level." Id. at 584, 810 P.2d at 582. (Voss, J., dissenting).
We granted the City's petition for review.
The petition for review presents three issues, but we find the first one dispositive. As stated in the petition, that issue is: Whether a municipal board of adjustment must consider a matter not specified in the notice of appeal pursuant to A.R.S. § 9-462.06(D).
We agree with the court of appeals in several important particulars. First, we agree that the City properly raised in the trial court the contention that Neal had waived the vested rights issue by not asserting it before the Board. Second, we agree that the Board would have had jurisdiction to hear a vested rights issue if one had been raised. Third, we agree that the Board's determination of a vested rights issue would be reviewable only on the record under A.R.S. § 9-462.06(K), and not by a trial de novo in superior court.
We disagree,...
To continue reading
Request your trial
-
Southwest Soil Remediation v. Tucson
...body's decision. § 9-462.06(K). The issue of vested rights is also within a board of adjustment's authority. Neal v. City of Kingman, 169 Ariz. 133, 136, 817 P.2d 937, 940 (1991). ¶ 16 In its supplemental complaint, SSR attempted to overturn the decision of the City's zoning administrator t......
-
Watahomigie v. Arizona Bd. of Water Quality Appeals
...a second motion to dismiss the Tribe's appeal. It argued that the Arizona Supreme Court's then-recent decision in Neal v. City of Kingman, 169 Ariz. 133, 817 P.2d 937 (1991), showed that the Board properly dismissed the Tribe's appeal. UPM also indicated that several key witnesses for UPM a......
-
Hourani v. Benson Hosp.
...(claim of bias and prejudice must be raised promptly after knowledge of alleged disqualification); accord Neal v. City of Kingman, 169 Ariz. 133, 136, 817 P.2d 937, 940 (1991); Pavlik v. Chinle Unified Sch. Dist. No. 24, 195 Ariz. 148, ¶ 8, 985 P.2d 633, 636 (App.1999). Although these cases......
-
Jonathan v. Arizona Dep't of Econ. Sec.
...his ineffective assistance claim. Generally, issues not raised in the notice of appeal are deemed waived. See Neal v. City of Kingman, 169 Ariz. 133, 137, 817 P.2d 937, 941 (1991). However, we address the merits of Father's argument, in our discretion, because we affirm the juvenile court's......