Robinson v. Lintz
| Decision Date | 30 November 1966 |
| Docket Number | No. 7724,7724 |
| Citation | 420 P.2d 923,101 Ariz. 448 |
| Parties | Ella L. ROBINSON, Appellant, v. C. F. LINTZ, Superintendent, Division of Building Inspections, City of Phoenix, Samuel Mardian, Jr., Mayor, Dr. Preston T. Brown, William T. Garland, Jay Hyde, Mrs. Edna McEwen, Dr. Ray M. Pisano and Thomas Tang, as Mayor and Members of the City Council of The City of Phoenix, Appellees. |
| Court | Arizona Supreme Court |
Kramer, Roche, Burch & Streich, Mark I. Harrison, Phoenix, for appellant.
Merle L. Hanson, City Atty., Robert J. Backstein, Asst. City Atty., for appellees.
Appellant, Ella L. Robinson, appeals from a trial court judgment denying her mandamus relief for the issuance of building permits from the City of Phoenix. This appeal raises questions concerning (1) the power of the Maricopa County Board of Supervisors over the platting and recording of subdivisions, within three miles of the corporate limits of the City of Phoenix, and (2) the meaning of certain provisions of the zoning ordinances of Maricopa County and the City of Phoenix.
For convenience the parties will be designated as follows: the appellant, Ella L. Robinson, will be referred to as the plaintiff. The appellees, C. F. Lintz, Superintendent, Division of Building Inspections, City of Phoenix, and Samuel Mardian, Jr., Mayor, Dr. Preston T. Brown, William T. Garland, Jay Hyde, Mrs. Edna McEwen, Dr. Ray M. Pisano and Thomas Tang, as Mayor and Members of the City Council of the City of Phoenix will be referred to as the defendants. The Maricopa County Board of Supervisors will be referred to as the Board, and the Maricopa County Zoning Commission as the Commission. The City of Phoenix will be referred to as the City.
On July 3, 1961 plaintiff filed with the Board a plat of her proposed subdivision of land situated in an unincorporated area within three miles of the corporate limits of the City. Under the provisions of the County Zoning Ordinance then applicable, the area which included the land of the plaintiff was zoned 'Rural'. The minimum permissible lot size in the 'Rural' classification was 7,000 square feet, and the proposed lots in the plaintiff's subdivision complied with this requirement.
Prior to the filing of the plaintiff's subdivision plat a neighboring property owner had petitioned the Commission to seek a change of zoning under which the minimum lot size would be increased in the area to one acre. Public hearing on this proposed zoning change was set by the Commission for September 21, 1961. In the interim, plaintiff secured tentative Commission approval of her plat on July 20, 1961.
On September 21, 1961, the Commission unanimously approved the proposed zoning change and forwarded it to the Board. Having recommended this change, the Commission decided, on October 5, 1961, to hold plaintiff's subdivision matter in abeyance pending the outcome of the zoning case before the Board, notwithstanding that plaintiff had met all qualifications necessary for final approval of her plat by September 28, 1961. Plaintiff then submitted an executed copy of her plat to the Board, demanding that it be approved and forwarded for recording at the next regular meeting. Though plaintiff asserted that all requirements for approval and recording had been met and that neither the Commission nor the Board could withhold approval and delay recording because of the pending change of zoning, the Board decided to take the plat under advisement and to await the outcome of the zoning case.
On October 13, 1961 plaintiff filed an action in Superior Court seeking to compel the Board to approve and transmit her plat for recording and on December 27, 1961 the court held that she could record her plat without the approval of the Board since the Board had no authority to approve or disapprove her subdivision plats. Plaintiff recorded her plat on December 29, 1961.
On January 22, 1962 the Board approved the requested zoning change, thus requiring a minimum lot size of one acre. The land was annexed by the City on or about February 20, 1962, and on March 2, 1962 the City Zoning Commission recommended a continuation of County zoning, a recommendation officially approved by the City on April 17, 1962. Meanwhile, on March 14, 1962 plaintiff had applied to City officials for the issuance of building permits on the lots in her subdivision. Permits were refused for failure to comply with the City Zoning Ordinance. On March 27, 1962 plaintiff commenced the present action seeking to compel the defendant C. F. Lintz to issue building permits. Plaintiff contends that by recording her plat she had acquired 'legally established' lots within the meaning of the County Zoning Ordinance at a time when the area was zoned 'Rural', that such classification permitted lots considerably smaller than one acre, and that lots legally established under County jurisdiction were legally established building lots in the City in accordance with City Ordinance § 400(c). From the trial court's finding that she had not acquired legally established subdivision lots, plaintiff takes this appeal.
A denial of plaintiff's application for the building permits in question for failure to comply with the regulations of the new zoning ordinance adopted by the Board in January of 1962 necessarily requires a finding that the ordinance applies to, and acts as a restriction on the plaintiff's subdivided plat. It is with this finding that the plaintiff takes issue. In this regard, the Maricopa County Zoning Ordinance, Article 10, Section 1(A) (2)(a) provides:
'(2) Lot Area and Dimensions
(a) Any substandard lot, either as as to dimensions or area for the district in which it is located, that was Legally established as such when the same came under the influence of the minimum regulations of such district shall be considered as a legal lot in that district; * * *' (Emphasis supplied).
The plaintiff's 7000 square foot lots were clearly 'substandard' under the January, 1962 ordinance requiring that the lots be at least one acre in area. Her development plan also failed to meet the minimum setback standards included in the same ordinance. Unless the plaintiff's lots fall within the exception provided for 'legally established' lots, therefore, the City Building Inspector was justified in denying the requested building permits. It is to this latter question that we now turn.
On May 1, 1958 the Board passed a resolution purportedly giving it authority over the platting and recording of subdivisions by requiring Board approval of all subdivision plans before they could be recorded in the County Recorder's Office. The significant portions of that resolution read as follows:
'Whereas, it has become apparent that overall planning and zoning in the County of Maricopa cannot successfully be carried on without a complete control by this Board * * * of all subdivisions of land carried on in the unincorporated areas of the County.
'NOW, THEREFORE, be it resolved * * * that no plat or map of subdivided lands in the unincorporated areas of Maricopa County shall be filed in the office of the County Recorder unless such map or plat has been first approved by the Board * * * and such map or plat signed by the Chairman of the Board * * *.
'* * * that no such subdivision map or plat shall be approved by the Board * * * unless such map or plat has been presented to the County Planning and Zoning Commission for their study and recommendation to the Board of Supervisors.'
The defendant maintains that this Resolution makes Board approval of a subdivision plat necessary before subdivision lots can be deemed to be 'legally established' within the purview of Article 10 of the County Zoning Ordinance, supra. The plaintiff disagrees with this position on the grounds that the Board is entirely lacking the authority to require such approval. If the Board in fact did not have such authority, it would hardly be in a position to declare that a subdivision plat had to be approved by the Board in order for the lots to be legally established.
The applicable statutes of Arizona do not give any express grant of power to a board of supervisors over the platting and recording of subdivisions. Defendants do not argue to the contrary, but rather direct our attention to A.R.S. § 11--802. This statute, granting the county boards of supervisors power over matters of planning and zoning in their respective counties, provides as follows:
'The board of supervisors of a county, in order to conserve and promote the public health, safety and general welfare, and in accordance with the provisions of this chapter, may plan and provide for the future growth and improvement of the area under its jurisdiction, and coordinate all public improvements in accordance therewith, form a planning and zoning commission to consult with and advise it regarding matters of planning and zoning, and in the manner provided in this chapter, adopt and enforce such rules, regulations, ordinances and plans as may apply to the development of the area under its jurisdiction.'
Defendants contend that from the broad wording of this statute a power to approve subdivision plans before recording may be implied. Such a finding, however, would conflict with this court's prior decisions declaring that a board of supervisors had only such powers as are expressly conferred by statute. Hart v. Bayless Investment & Trading Co., 86 Ariz. 379, 346 P.2d 1101; Hartford Accident & Indemnity Co. v. Wainscott, 41 Ariz. 439, 19 P.2d 328. In Hart, supra, we concluded that the law making powers of the county, unlike the law making powers of the legislature, are entirely derivative, and as a result the County Board of Supervisors could exercise only those powers specifically ceded to it by the legislature.
In the present instance, not only had the legislature not specifically ceded such powers to the Board, but our statutes indicate that indeed the legislature...
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