Rotter v. Coconino County

Decision Date29 June 1990
Docket NumberNo. 1,CA-CV,1
Citation805 P.2d 1019,167 Ariz. 198
PartiesFranz ROTTER, South Grand Canyon Hospitality, Inc., an Arizona corporation, Plaintiffs-Appellees Cross Appellants, v. COCONINO COUNTY; Coconino County Planning and Zoning Commission; and William L. Towler, Director of the Coconino County Department of Community Development, Defendants-Appellants Cross Appellees. 88-566.
CourtArizona Court of Appeals
OPINION

CONTRERAS, Presiding Judge.

In this appeal, we consider the issue of whether A.R.S. § 11-830(B) authorizes the expansion of a nonconforming business use onto an adjoining parcel which was not previously subject to the nonconforming use and which lies in a district zoned differently than the property subject to the nonconforming use. We conclude that the statute authorizes such an expansion of a nonconforming business use and affirm the trial court's order requiring Coconino County to issue a building permit authorizing the expansion of appellees' hotel up to one hundred percent of the area of the original hotel.

In the cross-appeal, the issue presented is whether the trial court erred in failing to award attorney's fees to appellees pursuant to A.R.S. § 12-2030. We conclude that the trial court erred in failing to award attorney's fees to the prevailing party. Accordingly, we reverse the order of the trial court denying appellees' request for attorney's fees and remand the matter for entry of judgment awarding attorney's fees in the full amount requested.

FACTS AND PROCEDURAL HISTORY

The facts essential to resolution of this litigation are not in dispute. Appellees, South Grand Canyon Hospitality, Inc. and its president, Franz Rotter, operate a 77-unit hotel at Tusayan, Arizona, which is located in Coconino County near the south rim of the Grand Canyon. Appellees had constructed the hotel in 1980 on Assessor's Parcel Number 502-17-11G (hereinafter "11G"), which they lease from the American Legion. The hotel occupies virtually all of parcel 11G. At that time, parcel 11G and surrounding parcels 502-17-10B and -10D (hereinafter "10B" and "10D") were zoned R-3 under a 1974 Coconino County Zoning Ordinance. Under the 1974 Ordinance, hotels were a permitted use in the R-3 zone.

In August 1981, Coconino County adopted a new zoning ordinance under which parcels 11G, 10B and 10D were rezoned to RM-10/A. Sometime prior to 1987, parcels 10B and 10D were rezoned a second time to RM-20/A. Hotels are not a permitted use under either RM-10/A or RM-20/A zones. As a result of the zoning changes, appellees' hotel became a nonconforming use.

In 1987, appellees purchased portions of parcels 10B and 10D which later became designated as Assessor's Parcel Number 502-17-10G (hereinafter "10G"). Parcel 10G abuts the north side of parcel 11G. 1

Appellees applied to the Coconino County Planning and Zoning Commission for authorization to expand the hotel by one hundred percent of the area of the hotel onto parcel 10G. The commission denied appellees' request for a conditional use permit, which is required under the zoning ordinance for expansion of a nonconforming business use. The denial was made on the grounds that the commission had no jurisdiction to grant the expansion of the nonconforming use. The commission similarly denied appellees' request for a building permit.

Appellees brought a special action in Coconino County Superior Court from the decision of the Coconino County Planning and Zoning Commission. Appellees maintained that they were entitled to an expansion of the hotel onto parcel 10G pursuant to A.R.S. § 11-830(B) which provides:

A nonconforming business use within a district may expand if such expansion does not exceed one hundred per cent of the area of the original business.

Following a change of venue to Navajo County Superior Court, appellees filed a motion for judgment on the special action. After hearing the motion, the trial court determined that the specific restrictive language of A.R.S. § 11-830(B) precluded any further restriction by the county on the expansion of the existing business and that the county had no authority to restrict the expansion of a business across different zoning districts. The trial court found that the county was protected from further expansion of the nonconforming use by the language of A.R.S. § 11-830(B). The trial court ordered Coconino County to issue a building permit allowing appellees to expand the hotel onto the abutting parcel up to one hundred percent of the area of the original hotel.

Appellees requested attorney's fees pursuant to A.R.S. § 12-2030, which authorizes an award of attorney's fees to a party prevailing in an action to compel an officer of a political subdivision of the state to perform an act imposed by law. In its minute entry, the trial court ruled that the relief requested in this case was in the nature of mandamus, but denied appellees' request for attorney's fees.

Appellants, Coconino County and the Planning and Zoning Commission, appeal from the order requiring the county to issue the building permit. Appellees cross-appeal from the denial of their request for attorney's fees. 2

DOES A.R.S. § 11-830(B) AUTHORIZE EXPANSION OF A NONCONFORMING BUSINESS USE ONTO AN ABUTTING PARCEL?

The trial court interpreted A.R.S. § 11-830(B) as allowing appellees to expand their nonconforming business use by one hundred percent onto their adjoining parcel of property which had not previously been subject to the nonconforming use and which was zoned differently than the property which was already subject to the nonconforming use. The appellants argue that the trial court's interpretation of the statute is erroneous. Because the trial court's ruling was a conclusion of law, this court is not bound by the conclusion. City of Scottsdale v. Thomas, 156 Ariz. 551, 552, 753 P.2d 1207, 1208 (1988). We conclude that the trial court correctly determined that the statute allows expansion of a nonconforming business use onto the abutting property up to one hundred percent of the area of the original business and that, under the circumstances presented, appellees are entitled to a building permit allowing one hundred percent expansion of the hotel onto parcel 10G.

Legislation providing for zoning of real property located within a county is found in A.R.S. § 11-801 et seq. Within the zoning statutes, the county is given broad authority to initiate and enforce planning and zoning controls. A.R.S. § 11-802 directs the county board of supervisors to "plan and provide for the future growth and improvement of its area of jurisdiction", form a planning and zoning commission and adopt planning and zoning regulations and ordinances. A.R.S. § 11-821 allows the commission to formulate and adopt a comprehensive long-term county plan for the development of the area within its jurisdiction.

A.R.S. § 11-830, however, places certain restrictions on the county's authority to regulate the use of property within its jurisdiction. Subsection (A)(1) of the statute, allowing for the continuation of nonconforming uses, provides that "[n]othing contained in any ordinance authorized by this chapter shall [a]ffect existing uses of property or the right to its continued use or the reasonable repair or alteration thereof for the purpose for which used at the time the ordinance affecting the property takes effect." Subsection (B), which is central to this appeal, provides that "[a] nonconforming business use within a district may expand if such expansion does not exceed one hundred per cent of the area of the original business."

Appellees argue that, since A.R.S. § 11-30-830(B) contains no language expressly limiting the property upon which expansion can take place to the original parcel, the statute must be construed to allow expansion to the adjoining parcel. The county argues for a more narrow construction of the statute. Specifically, the county contends that A.R.S. § 11-830(B) does not authorize expansion of a nonconforming business use onto a parcel which was not previously burdened by the nonconforming use and which lies within a different zoning district than the nonconforming business use.

The zoning ordinance adopted by the Coconino County Board of Supervisors does not provide an absolute right to expand a nonconforming business use beyond the original parcel burdened by the nonconforming use. Section 17.3(B) provides that:

No non-conforming use shall be enlarged or extended in such a way as to occupy any part of the structure or site or another structure or site which it did not occupy at the time it became a non-conforming use, or in such a way as to displace any conforming use occupying a structure or site, except as permitted in this Section.

Section 17.11(C) provides in relevant part:

In any zone, subject to the granting of a conditional use permit, a non-conforming business use may expand if such expansion does not exceed one hundred percent (100%) of the floor area of the original business....

Section 18.2 outlines the procedure for obtaining a conditional use permit required by the ordinance before expansion of a nonconforming use may be authorized. Section 18.2-7 provides that the commission must be able to make the following findings before granting a conditional use permit:

A. That the proposed location of the Conditional Use is in accord with the objectives of this Ordinance and the purpose of the zone in which the site is located.

B. That the proposed location of the conditional use and conditions under which it would be operated or maintained will not be detrimental to the public health, safety, or welfare, or...

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