Peabody v. City of Phoenix

Decision Date03 June 1971
Docket NumberNo. 1,CA-CIV,1
Citation14 Ariz.App. 576,485 P.2d 565
PartiesCelia R. PEABODY et al., Appellants and Cross-Appellees, v. The CITY OF PHOENIX, a municipal corporation, et al., Appellees and Cross-Appellants. 1384.
CourtArizona Court of Appeals

Lewis & Roca, by John P. Frank, Phoenix, for appellants and cross-appellees.

Edward P. Reeder, Asst. City Atty., Phoenix, for appellees and cross-appellants City of Phoenix and Members of Phoenix City Council.

Hill & Savoy, by George M. Hill, Phoenix, for appellees and cross-appellants Modern Builders, Inc. and Transamerica Title Ins. Co. JACOBSON, Presiding Judge.

In this multiple appeal we are primarily called upon to determine whether the Superior Court of Maricopa County abused its discretion in setting aside a municipal zoning ordinance setting the number of lots within a given subdivision tract, adopted by the Phoenix City Council.

The facts which we consider necessary to this case are as follows:

The property in question comprises approximately 40 acres of land situated north of Camelback Road between 62nd and 64th Streets in the City of Phoenix. Excluding all dedications (primarily exterior roads and streets) required by the Planning and Zoning Commission and Council of the City of Phoenix, the area left for development in this tract is approximately 36.312 acres. The tract lies within a zoning district classified RE--35 (one residence per 35,000 sq. ft. lot). This acreage is equal to 1,581,750 sq. ft., which divided by the $35,000 sq. ft. lot requirement of an RE--35 zoning classification yields a maximum of 45 lots--excluding any internal non-residential uses, such as churches, shcools, parks, offices or internal public streets.

Appellee Modern Builders, Inc. 1 applied to the City Planning and Zoning Commission for a rezoning of the subject property pursuant to the Planned Area Development ordinance contained in § 426 of the Code of the City of Phoenix. The Planned Area Development (P.A.D.) ordinance is a development system permitting, among other things, greater flexibility of design, placement of buildings and use of open spaces; it allows some departure from the requirements of the zoning ordinance which it modifies, in the interest of the development of a tract as a unit, while still retaining the basic standard set by the previous existing zoning in the area.

Following the appropriate amendment proceedings, including a contested hearing, the City Council approved Modern Builders' application for a Planned Area Development project (P.A.D. 5--69), which authorized the construction of 44 residences upon the subject property.

Thereafter, appellants who comprise a number of the surrounding property owners, brought this action seeking prohibition and declaratory judgment relief, to contest the zoning determination by the City Council.

The appellants argued both at trial and in this Court that the maximum number of residences which could have been authorized to be built upon the property under the district's zoning classification as amended by P.A.D. 5--69 is 36.

The appellees contended at trial and argue on appeal that the maximum number of residences specifically approved by the City Council's adoption of P.A.D. 5--69 is 44, in compliance with the requirements of the amended zoning ordinance.

Upon findings of fact and conclusions of law the trial court struck down the adoption of P.A.D. 5--69 and declared that the maximum number of residences which could be built upon the property was 40.

From this judgment all parties have appealed.

The principal issue in this case is whether the City Council's adoption of P.A.D. 5--69, authorizing the construction of 44 residences upon a 36.312 acre plot, increased the density above that which would otherwise have been permitted in the district in which the site is located, and if so, whether such action was beyond the authority of the Council.

As an initial matter, Modern Builders concedes that some of the 44 residences it planned to build upon the tract would have had lots of less than 35,000 sq. ft., but argues that the individual lot size restrictions of RE--35 zoning do not apply when read together in connection with P.A.D. zoning, since the latter section amends the former by allowing this type of flexibility with the proviso that the average of all the lots exceeds 35,000 sq. ft. With this contention we agree. An examination of the requirements of the RE--35 zoning classification and the P.A.D. ordinance reveals the intention of the P.A.D. 'density' restriction to reach the ratio of the total number of residences to the net development area of the tract.

Section 426 of the Planned Area Development ordinance provides:

'PLANNED AREA DEVELOPMENT

'A. PURPOSE OF PLANNED AREA DEVELOPMENT

'A planned area development is intended to correlate comprehensively the provisions of this and other ordinances of the City to permit developments which will provide a desirable and stable environment in harmony with that of the surrounding area; to permit flexhibility that will encourage a more creative approach in the development of land, and will result in a more efficient, aesthetic and desirable use of open area, While at the same time maintaining substantially the same population density and area coverage permitted in the district in which the project is located; to permit flexibility in design, placement of buildings, use of open spaces, circulation facilities, and off-street parking areas, and to utilize best the potentials of sites characterized by special features of geography, topography, size or shape.' (emphasis added)

Further, the ordinance goes on to provide:

'4. Number of Dwelling Units. The number of dwelling units permitted in any district shall be determined by dividing the net development area of the site by the minimum lot area per dwelling unit required in the zoning district in which the site is located. Net development area shall be that area remaining after subtracting those portions of the site set aside for non-residential uses, such as churches, schools, parks, offices, and commercial. The method of calculating density shall be consistent with the method applicable to conventional development in the zoning district in which the site is located. Subject to the limitations of the total number of dwelling units permitted when the site contains more than one residential district, the distribution of units in the several districts may be adjusted in harmony with the total design and the adjacent area.' (emphasis added)

The purpose of the previous existing RE--35 restrictions is:

'Sec. 402. RESIDENTIAL ESTATE RE--35 DISTRICT--ONE FAMILY RESIDENCE

The RE--35, One Family Residence District, is a district of single family homes designed to maintain, protect and preserve a character of development on lots with a minimum area of 35,000 square feet, and with not more than one dwelling unit and customary accessory buildings upon one lot.'

At this point it should be noted that the disparity in the mathematical results reached by the trial court and the City Council concerning the maximum number of residences allowable upon this 36.312 acre tract stems primarily from a determination as to whether the 36.312 acre development area is to be reduced by the acreage consumed by internal streets in order to arrive at 'net development area.' The characterization of this internal street acreage as a 'public' dedication has the concomitant effect of reducing the 36.31 acres and consequently the number of allowable lots by an appreciable amount--depending upon how wide one chooses to plan the streets. If, on the other hand, characterization of the internal streets as 'private' allows them to be included in the net development area, it would appear to follow that the 44 residences would fall within the maximum number allowable under RE--35 zoning. The issue squarely turns on the construction to be given the P.A.D. ordinance restriction on the number of dwelling units, that is, '(t)he method of calculating density shall be consistent with the method applicable to conventional development in the zoning district in which the site is located.' City of Phoenix Code § 426 F.4. In this connection, the trial judge made the following finding of fact:

'4. In the district in which the site is located, the method applicable to conventional zoning is that the RE--35 standard is regularly applied. Lot sizes in a subdivision are computed by attributing to the lot the space held and used, to a minimum of 35,000 square feet, Excluding roads contiguous to the property, and the minimum lot area per dwelling unit required in the zoning district in which the tract is located is 35,000 square feet.' (emphasis added)

While we entertain no doubts as to the accuracy of this finding regarding the actual practice in the zoning district involved, we do not feel precluded from inquiring into the propriety of the trial court's conclusion of law which supplants the City Council's determination, and necessarily its construction of the density restriction of the P.A.D. ordinance. Arizona Corporation Com'n v. Tucson Ins. and Bond. Ag., 3 Ariz.App. 458, 415 P.2d 472 (1966). Conclusion of Law No. 12 states:

'12. A P.A.D. may not increase the number of homes on a site beyond the number which would be permitted under the method applicable to conventional development in the zoning district in which the site is located. Here that number is 40.' (emphasis added)

Inasmuch as the outcome of this appeal turns on the construction to be given this density restriction, it is helpful to look to other portions of the P.A.D. ordinance, where it is provided that the...

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6 cases
  • Corrigan v. City of Scottsdale, 1
    • United States
    • Arizona Court of Appeals
    • February 28, 1985
    ...zoning ordinances are presumed to be valid. City of Phoenix v. Oglesby, 112 Ariz. 64, 537 P.2d 934 (1975); Peabody v. City of Phoenix, 14 Ariz.App. 576, 485 P.2d 565 (1971). This court does not sit as a super-zoning commission, and will not pass judgment on the wisdom of the ordinance. The ......
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    ...review denied); Courtson v. City of Tucson, 10 Ariz.App. 159, 457 P.2d 346 (1969) (petition for review denied); Peabody v. City of Phoenix, 14 Ariz.App. 576, 485 P.2d 565 (1971) (petition for review denied); and City of Phoenix v. Price, 18 Ariz.App. 144, 500 P.2d 1132 (1972), (petition for......
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